Under certain search engine company pay-per-lead programs, such as Google’s Local Service Ads program, a search with the keyword phrase “family lawyer near me” for example would trigger the display of local services advertisements from family lawyers close to the consumer’s geographic location. The local service advertisers appear above all other paid advertisements, with only three displayed at a time. When there are more than three firms participating in the program for the relevant locality, the company rotates the displayed advertisements based on a rankings algorithm that considers factors such as proximity to the consumer, business operating hours, online reputation, and responsiveness to customer inquiries. In order to participate in the program, service providers must complete a screening and verification process. For lawyers, the process includes a background check, license check, and insurance verification. The local services advertisements appear at the top of a relevant search results page under the heading “Company Screened” with a green checkmark. The ad generally displays the lawyer’s name, photograph, search engine rating, years of experience, hours of operation, and a ‘call button’.
Unlike other pay-per-lead ads, local services advertisements do not link to the participating lawyer’s website. Rather, it links to a profile page created by the company. The profile page provides an overview of the legal services provided by the lawyer and displays the same ‘call button’ displayed on the ad. The phone number activated by the call button is not the lawyer’s number, but rather a number assigned to the lawyer by the company. All phone calls initiated through the lawyer’s local services ad or company profile page are routed through the company, which is authorized to access, monitor, and record communications initiated through the program. The lawyer also authorizes the company to disclose the communication to third parties.
A phone call routed through the company to a lawyer plays a ‘whisper message’ prior to connecting the call which alerts the lawyer that the call is coming from the company, will be recorded, and may not be privileged. Potential clients also hear a ‘whisper message’ stating that the call is being recorded and is not confidential.
The North Carolina Bar issued a Proposed Formal Ethics Opinion raising a fundamental problem with participation in the program, and suggesting that such participation would violate the North Carolina Rules of Professional Conduct – even with an additional disclosure.
Initially, the Proposed Opinion suggests that such a program would violate North Carolina Rule of Professional Conduct 7.1, regarding lawyer advertising, because there is no indication on the lawyer’s local services advertisement or the lawyer’s company profile page that all communication with the lawyer will be routed through, recorded, and retained by the search engine company. Similarly, there is no indication that the company may share the communication with additional third parties.
The Proposed Opinion goes on to suggest that clear, adequate, and advance notice on the lawyer’s local services ad would not be sufficient. (Rule 8.4(d), regarding conduct prejudicial to the administration of justice is cited) “A person seeking legal advice or other legal services is seeking justice, including the exploration of his or her legal rights and responsibilities, potential legal remedies, or a defense against allegations that could substantially impact his or her life. A foundational component of a person’s pursuit of justice is that person’s reasonable and historic expectations of privacy and exclusivity in communicating with a lawyer…. An individual may choose to alter those expectations when communicating with a lawyer (e.g., by bringing a family member to a consultation); but a lawyer may not unilaterally make that choice for the individual…. While the Ethics Committee is hesitant to classify a consumer using the local services advertising program as a prospective client, the committee is concerned that the local services advertising’s structure employs a mechanism through which critically important client confidences could be made vulnerable (e.g., the recordings could be subpoenaed by adverse parties, inadvertently disclosed, or subjected to unauthorized access). These vulnerabilities thwart a consumer’s pursuit of justice in an adversarial system such as ours. Additionally, even with an appropriate disclaimer, the knowledge that a conversation is being recorded has a chilling effect on full disclosure between the consumer and his or her potential lawyer, thereby undermining the very reason the consumer is seeking legal services. Accordingly, the lawyer’s use of a program that is designed to subvert a consumer’s basic expectations of privacy and exclusivity when reaching out to a lawyer about their legal rights and responsibilities does not foster the pursuit of justice.”
N.C. Bar Proposed 2021 Formal Ethics Opinion No. 5 (July 15, 2021).