Virginia Lawyers Weekly

The Virginia State Bar’s Standing Committee on Legal Ethics is seeking comment on proposed opinions on participation by attorneys in third-party Web sites and on covert tactics to investigate unauthorized practice of law allegations.

Proposed Legal Ethics Opinion 1851 concludes that it is unethical for an attorney to participate in a Web site that invites a prospective client to submit information and automatically forwards it to lawyers when the Web site charges a fee based on an exclusive geographical listing, on strict limitations on the number of participating lawyers in a geographic area, or on a set fee per referral or client contact.

“Rules 7.2(c) and 7.3(d) restrict a lawyer from giving something of value to a person or organization in exchange for recommending employment by a client or as reward for having made a recommendation resulting in employment by the client,” according to the proposed opinion.

“Unlike for-profit directory advertising, which is open to anyone who wishes to participate, and which is permitted by the rules, the third-party website in question limits its listing to less than five lawyers in a given geographical or practice area,” the committee said. “By restricting the number of lawyers who are listed, the website appears to be recommending participating lawyers to the prospective client.”

Payment based on the number of referrals “amount to an impermissible quid pro quo for services because the fee paid by the lawyer is directly related to the number of prospective clients with whom the lawyer makes contact,” according to the proposed opinion.

Rule 7.2(c)’s prohibition on participating in for-profit referral services also applies “where the referral service fees are in excess of the amount required to cover reasonable overhead expenses,” the committee said.

Covert tactics

The proposed covert tactics opinion, LEO 1845, stems from an allegation that a paralegal for a sole practitioner engaged in the unauthorized practice of law by continuing to prepare wills and powers of attorney for clients after the death of the lawyer. The paralegal did not advertise or publicly hold herself out as providing such services.

The allegation came from a circuit court clerk who said documents that might have been prepared by the paralegal years ago are being admitted to probate. “Certain problems are being discovered in how the documents were drafted and questions asked about the circumstances under which they were prepared,” the committee said.

Ethics counsel has proposed directing a VSB investigator or a willing outside volunteer to contact the paralegal under the pretext of wanting a will or POA prepared. The undercover agent would pay a fee for those services if the documents are prepared and report the results to counsel and the committee.

The proposed opinion implicates Rules of Professional Conduct 5.3(c)(1), which govern a lawyer’s responsibility regarding non-lawyer assistants, and 8.4, which bars a lawyer from violating a rule through the actions of another or engaging in misrepresentation that reflects adversely on the lawyer’s fitness to practice law.

The committee notes that the unauthorized practice of law is a criminal offense. Moreover, the committee says, earlier opinions, LEOs 1765 and 1738, have established a “law enforcement exception” that allows attorneys to supervise undercover criminal investigations and “testers” for investigation of allegations of discrimination in housing.

“The Committee sees no principled distinction to be drawn between these types of investigations, in which undercover operations have been approved, and the UPL investigation presented in this hypothetical in which lawyers and agents of a governmental agency are charged by law with the investigation of conduct that is criminal or illegal,” according to the opinion.

The full text of the opinions is available at the VSB Web site, www.vsb.org. Comments must by submitted by June 15 to Karen A. Gould, VSB Executive Director, 707 E. Main St., Suite 1500, Richmond, VA 23219-2800.

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