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Ethics Committee grapples with pop-ups, Groupon and Google


By SYLVIA ADCOCK, Staff Writer

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Watch the pop-ups.

That’s the word from the N.C. State Bar’s Ethics Committee, which is looking into the use of live-chat services on attorney websites – specifically, whether the use of a live-chat button would violate Rule 7.3(a), which provides that an attorney may not solicit business by “in-person, live telephone or real-time electronic contact.”

A staff opinion discussed at Thursday’s Ethics Committee meeting says that it’s fine for a lawyer to use a live-chat support service, the kind that typically features a button accompanied by “Click here to chat live online.”

But if a pop-up window appears on the screen specifically asking visitors if they would like “live help,” that could run afoul of the rules. “The real-time contact is not initiated by the website visitor,” the opinion says.

Faced with three inquiries involving marketing and the Internet at this week’s quarterly meeting, the Ethics Committee decided to seek help from an outside expert in technology when such issues arise. “We need technical experts advising us,” said committee member Mark Holt during one of the discussions.

As far as the pop-up windows go, David Henson of HensonFuerst in Raleigh sent a letter to the committee saying he’s not sure why they are objectionable given that the website visitor had already intentionally gone to the law firm’s website, thus initiating contact. He also noted that other states may be allowing this technology, which could “create a huge disadvantage for local firms who are attempting to compete with these out-of-state firms.”

The committee also decided to reconsider an opinion that found that buying another attorney’s name on Google’s AdWords advertising service was deceitful and constitutes professional misconduct. The opinion came about after one attorney bought a competitor’s name so that if someone were searching on Google for his competitor, the link for the attorney who bought the ad would come up at the top of the list.

But the Technology Advisory Committee of the N.C. Bar Association said in the letter to the State Bar’s Ethics Committee that the practice is not an attempt to deceive. “The situation is analogous to advertising with a billboard next to a competitor’s place of business,” wrote Ben Gallop, head of the NCBA’s committee.

“We may have had a knee-jerk reaction to that one, but I think it was the right knee-jerk reaction,” said one Ethics Committee member.

Gallop acknowledged that such advertising may seem in bad taste, but he said “this type of advertising may be a reasonable next stop in advertising, given the demise of phone books and the rise of Internet searches.”

The committee also had to consider whether an attorney advertising on Groupon – a service that sends out e-mails to subscribers with daily discounts on specific items or services – constitutes fee-sharing.

“I’m a huge Groupon fan,” said Suzanne Lever, the assistant counsel to the committee. “I ordered something this morning.” But if a lawyer used it for say, a discounted price on a will, it would likely constitute fee-sharing with a non-lawyer, which Rule 5.4(a) prohibits.

Although lawyers can spend money for advertising, Groupon is different. The company negotiates with each business on a case-by-case basis and its compensation is a percentage of the amount actually paid to the business, which in the case of an attorney, would be a percentage of the fee.

All three matters – the live-chat issue, search-engine advertising and Groupon discounts – were sent to subcommittees for further study.

Such inquiries “have been coming in pretty regularly in the two years I’ve been on the committee,” Holt said in an interview. “We’re just starting to see it more frequently. … We can’t let technology get ahead of the ethics.”

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