By Pamela MorganBio
As the economy continues to sputter, individuals in client-centered fields must be aggressive and creative with their marketing strategies—even lawyers. But unlike other client-centered industries, lawyers are bound by a professional rule of ethics that prescribes the types of behaviors that are appropriate in soliciting new business. And with the rise of online group coupon retailers, like Groupon, these rules have been applied in ways never imagined when promulgated.
If a lawyer has not met a potential client, there is no real opportunity for her to assess whether any conflicts of interests would arise if she were to undertake the representation. The ABA Model Rules of Professionalism requires lawyers to adopt reasonable procedures to determine the existence of any conflicts. And if a conflict does exist, the lawyer is required to take appropriate measures to avoid or overcome it.
The group coupon concept, which allows service providers to offer heavily-discounted, promotional deals to a largely anonymous group of prospective customers/clients, renders a front-end conflict of interest assessment impossible. In other words, the purchaser essentially becomes a client despite any conflicts of interests posed by the representation. Such an arrangement could be detrimental to the interests of the purchasers and other affected clients.
Furthermore, before a lawyer can assess whether she will be able to provide competent service to a client, the lawyer must thoroughly assess the case and its legal and factual issues. This is not possible if the lawyer is hired, and paid, before even meeting the client. Even if the group coupon was for a specific legal transaction, the lawyer does not know if the potential client’s needs fit the transaction until the she has asked a few questions.
The New York Bar recently issued an opinion seeking to apply its ethics rules to group coupon solicitations. It stated: “a lawyer may participate…so long as the company materials promoting the coupon make it clear that there is no lawyer-client relationship formed until the lawyer has checked for conflicts and verified that he is competent to undertake the representation.” This reasoning, while intuitive, seems to lower the bar of ethical behavior by putting the public at risk of unscrupulous lawyers.