Friday, January 27, 2012

Majority now allows attorney Groupon advertising, and so should California

SAN DIEGO –  Attorney Craig S. Redler started the Groupon lawyer controversy last year by offering $99 wills to  help “keep your brain from being inserted into any future Frankensteins.”  Attorney Redler sold over 40 groupons,  claims he was cleared by the Missouri ethics committee and attracted 150 emails and calls from other lawyers interested in finding out if the Groupon worked. The MO ethics committee then issued an opinion stating that they do not provide opinions on specific companies, and attorneys should request advisories on a case-by-case basis. In the latest legal ethics opinion on the matter, the New York State Bar has cleared NY attorneys to advertise on “deal of the day” or  “group coupon” websites next to Laser Cliniqúe mani-pedi offers and $7 Extreme Pizzas.

Yes, this coupon is real. "P'Ta Mon" John markets himself as a "thugs' lawyer" in Baton Rouge, LA

A handful of state bars have addressed the issue of attorney group coupon advertising and split.  Most states that have addressed the issue, however, currently either allow or cautiously acknowledge such ads. For example, Oregon acknowledged sites like Living Social,  ideeli and Woot as “powerful lawyer marketing tools,” but advised attorneys to proceed with caution, as with traditional forms of advertising. 71-MAY Or. St. B. Bull. 9 (2011). North Carolina and South Carolina bar associations have issued ethics opinions along the same lines.

Pennsylvania bar has issued an ethics opinion that outlines the main arguments of lawyers opposing group coupons. PA prohibited attorneys from utilizing Groupon because the lawyer “would be engaged in impermissible fee splitting under Rule 5.4 (Professional Independence of a Lawyer),” the lawyer would be unable “to evaluate whether a conflict of interest existed with respect to a prospective client” and lack direct communication with the client. See Pennsylvania Opinion 2011-027. “Cheapening of the legal profession,” excessive fee potential (if the buyer does not use the coupon before it expires), premature attorney-client relationship formation and similar
arguments have been raised elsewhere as well.

“Fee splitting with non-lawyers” argument may sound like it has some merit but should be ultimately rejected because there is no interference with the lawyer's independent professional judgment. Groupon’s commission is 50%. Such large percentage of the deal does, in fact, appear more like fee splitting rather than a simple ad price. However, the rule prohibiting fee splitting is in place to prevent non-lawyers from influencing the lawyer’s independent professional judgment. There is no danger of that with Groupon because the advertising company cannot care less how a lawyer structures the advertised deal. Conflict of interest, lack of direct client communication, excessive fee potential, premature attorney-client relationship formation, cheapening of the legal profession are not inherent in group coupon advertising and can be seen in many other permissible forms of legal advertising, such as Yellow Pages, as well as print and TV ads shown in this article.

Meanwhile, times are tough as nails, so many new and experienced attorneys simply cannot afford the high horse in this economy. Therefore, California should adopt the emerging majority rule and allow group coupon lawyer advertising.