Options Outsource Enforcement Outsource Enforcement  To Attorney Discipline for Ethics Violations  To State AGs for Consumer Fraud  To Prosecuting Attorneys.

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Presentation transcript:

Options Outsource Enforcement Outsource Enforcement  To Attorney Discipline for Ethics Violations  To State AGs for Consumer Fraud  To Prosecuting Attorneys for UPL prosecution Adopt and Advance the ABA Best Practice Adopt and Advance the ABA Best Practice Guidelines Guidelines

Outsourcing Lawyers and only lawyers are subject to disciplinary enforcement Lawyers and only lawyers are subject to disciplinary enforcement Lawyers may or may not be subject to consumer fraud, but all other individuals and entities are Lawyers may or may not be subject to consumer fraud, but all other individuals and entities are Both lawyers and all entities are subject to UPL Both lawyers and all entities are subject to UPL

Ethics Rules Impute Acts of Agents to Lawyers Sometimes by Specific State Rules Sometimes by Specific State Rules  FL Rule (b) lawyer who accepts referrals from a lawyer referral service is responsible for ensuring that any advertisements used by the service comply with the requirements of the Rules.  TX Rule 7.4(p) lawyer who advertises in the public media as part of an advertising cooperative or venture shall be individually responsible for: (1) ensuring that each advertisement does not violate this Rule.

Usually through a Catch-All Rule Usually through a Catch-All Rule  ABA Model Rule 8.4(a) it is a professional misconduct to violate the rules through the acts of another.

The Ethics Rules Apply to the Internet – whether or not they say so

Potential Breaches Rule 7.5(a) A trade name may be used by a lawyer in private practice if it does not imply a connection with a public or charitable legal services organization... Rule 7.5(a) A trade name may be used by a lawyer in private practice if it does not imply a connection with a public or charitable legal services organization... Rule 7.1 A Lawyer shall not bake a false or misleading communication about the lawyer or the lawyer’s services... Rule 7.1 A Lawyer shall not bake a false or misleading communication about the lawyer or the lawyer’s services... Most states prohibit the creation of “unjustified expectations” and “unsubstantiated comparisons”

Rule 7.2(b) A lawyer shall not give anything of value for the recommendation of the lawyer’s services, except for the reasonable costs of advertising or the usual changes of a state-qualified or non-profit lawyer referral service or legal service plan. Rule 7.2(b) A lawyer shall not give anything of value for the recommendation of the lawyer’s services, except for the reasonable costs of advertising or the usual changes of a state-qualified or non-profit lawyer referral service or legal service plan. Disclaimers Disclaimers Limits on dramatizations Limits on dramatizations Limits on stock photos Limits on stock photos Retention/Filing/Screening requirements Retention/Filing/Screening requirements Rule 8.4(c) and (d) prohibit deception or misrepresentation and conduct detrimental to the legal profession. Rule 8.4(c) and (d) prohibit deception or misrepresentation and conduct detrimental to the legal profession.

Possible Outcomes Cease and desist letter Cease and desist letter “Ask Gary” Sanctions “Ask Gary” Sanctions

It may be hard to tell who is involved...

Sometimes lawyers are listed without participating or even knowing it...

Avoid Pretexting – Leave the investigation to the Pros

A Second Option – ABA Best Practice Guidelines At

Questions