Pennsylvania Opinion finds participating in program like Avvo Legal Services to be unethical

For the third time in four months, a state bar ethics committee has warned attorneys that participating in an Avvo like client referral program would be unethical.  Similar to opinions in Ohio and South Carolina, and to rules revisions in Florida, the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility issued Formal Op. 2016-200 holding that attorneys risk violating several ethics rules if they participate in a program like Avvo Legal Services.

I have not been able to find a copy of the opinion yet, but an article in the BNA/ABA Lawyers’ Manual on Professional Conduct reports that it finds a number of problems with the way the program is set up an implemented. For example, it finds that what Avvo claims is a marketing or advertising fee does “not correspond to any traditional model of compensation for advertising,” that the program improperly “delegates to a non-lawyer several critical decisions and functions that fall within the exclusive domain of the practice of law,” that it interferes with attorneys’ duty to exercise independent professional judgment, that it hampers a lawyer's ability to comply with Rule 1.16(d), which requires lawyers to refund any fees that have not been earned at the end of a representation, that the management of the fees constitutes commingling and a violation of the duty to safeguard client property and that it threatens the confidentiality of information related to the representation.

This comes as no surprise to me, or to longtime readers of this blog.  I have argued both here and in an upcoming article, that under the current regulatory system, Avvo Legal Services puts lawyers in positions to violate a number of rules and that Avvo's arguments to the contrary are not convincing.  See here, here and here for example.

However, saying that participating in Avvo Legal Services would violate the rules is not the end of the issue.  The question then becomes whether the rules should be changed to accommodate what Avvo wants to do. Interestingly, I don't think this is what Avvo has been arguing in response to the opinions around the country.  Instead of saying that the rules should be changed, Avvo typically argues that the rules don't apply or should not be followed.

Others, on the other hand, have been making more thoughtful arguments.  For example, solo attorney-blogger Carolyn Elefant has published an interesting post in My Shingle in which she argues why the rules should be changed to allow services like Avvo Legal Services to operate the way they want to.  Among other things, she argues that rules should not require lawyers to use trust accounts at all, which I imagine will be controversial.

Also, Professor Milan Markovic (Texas A&M) criticizes the approach of some of the opinions on Avvo as mechanistic.  You can read his comment here.