the freedom of clients to choose a lawyer. N.D.R. Prof. Conduct 5.6,
Comment 1.
Based on the facts, the clients have agreed to representation by the
Texas attorney exclusive of the former firm. If the Texas attorney
were to fee share with the former firm, that former firm would need
to have joint responsibility for the client(s) at issue. By requiring this
joint responsibility via the fee sharing, the former firm is essentially
forcing representation on the client, which is prohibited by Rule 5.6.
CONCLUSION
This opinion was drafted by Sarah Atkinson and was unanimously
approved by the Ethics Committee on the 4th day of June, 2018.
ETHICS COMMITTEE OPINION NO. 18-03
THIS OPINION IS ADVISORY ONLY
QUESTION PRESENTED
May an attorney provide a reasonable discount on legal services to
past clients who review the attorney on a website, provided that the
attorney does not premise the discount on the past client providing a
specific rating?
FACTS
There were no facts provided for the basis of this ethics opinion.
OPINION
An attorney should not offer a reasonable discount on legal services
to past clients who review the attorney, unless:
1. The discount is not premised on a specific rating or review;
2. The fact that the rating or review was incentivized is disclosed;
and
3. The discount is offered to all clients of the attorney, not just
those who were satisfied with the outcome of their case and
likely to give a positive review.
APPLICABLE NORTH DAKOTA RULES OF
PROFESSIONAL CONDUCT
Rule 7.1 Communications Concerning the Services of a Lawyer or
Persons Professionally Associated with a Lawyer
Rule 7.2 Advertising
Rule 8.4 Misconduct
DISCUSSION
While this appears to be a case of first impression in North Dakota,
the New York State Bar Association addressed this issue in an ethics
opinion dated March 25, 2015. Although the New York Rules
of Professional Conduct differ slightly from the North Dakota
Rules of Professional Conduct, particularly Rule 7.1, the New York
Ethics Opinion 1052 provides a good analysis about the dangers
of incentivizing past clients to rate and review the attorney, and the
disclosures required if an attorney chooses to take this path.
An attorney must first consider whether giving past clients a
reasonable discount for reviewing the lawyer violates Rule 7.2 of the
North Dakota Rules of Professional Conduct. Rule 7.2(a) allows
a lawyer to “market and advertise legal services through media,
including . . . electronic advertising” such as the internet. However,
Rule 7.2(b) cautions that a lawyer “shall not give anything of value
to a person for recommending the lawyer’s services,” subject to
certain exceptions (which do not appear applicable in this inquiry).
Comment 4 of Rule 7.2 further explains:
“A lawyer is allowed to pay for advertising permitted by this
Rule and for the purchase of a law practice in accordance with
the provisions of Rule 1.17, but otherwise is not permitted to
pay another person for recommending the lawyer’s services or
for channeling professional work in a manner that violates Rule
7.3. A communication contains a recommendation if it endorses
or vouches for a lawyer’s credentials, abilities, competence,
character, or other professional qualities.” (emphasis added)
A key distinction to address is whether the attorney is providing
a past client a reasonable discount for a “rating” or “review,” verses
a “recommendation.” A recommendation has an inherent positive
connotation. To pay a past client for recommending the services of
the attorney violates Rule 7.2.
Providing a discount for a past client to rate or review the attorney
does not appear to violate Rule 7.2. When rating or reviewing
an attorney, the past client is under no obligation to “endorse or
vouch for a lawyer’s credentials, abilities, competence, character, or
professional qualities.” The past client can give a negative review/
rating and choose not to recommend the attorney, while still
receiving the discount. With these important distinctions, a lawyer is
not prohibited from compensating past clients for ratings and reviews
under Rule 7.2. An attorney is prohibited from compensating past
clients for making recommendations. The New York Bar Association
reached the same conclusion: “If the inquirer made the credit
contingent on receiving a positive review or high score, or if the
inquirer made the credit contingent on being retained by a new client
as a result of the rating, then the credit would violate Rule 7.2(a).”
Next, the attorney must consider whether providing discounts to
past clients for ratings and reviews violates Rules 7.1 and 8.4 of the
Rules of Professional Conduct. Rules 7.1 and 8.4 both pertain to
false, misleading, dishonest, and deceitful misrepresentations made
by lawyers. Rule 7.1 declares a lawyer shall not “make a false or
misleading communication about the lawyer, a person professionally
associated with the lawyer, or their services.” Comment 1 to Rule 7.1
clarifies the word “communications” include “advertising” permitted
by Rule 7.2, as discussed above. Rule 7.1(a) further provides a
communication is false or misleading if it “contains a material
misrepresentation of fact or law, or omits a fact necessary to make
the statement considered as a whole not materially misleading.” Rule
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