Jul. 30, 2020
The State Bar of California’s confused crusade against LegalMatch
In order to improve access to legal services, the State Bar should promote the use of online attorney referral and matching systems. Instead, the bar is waging war against LegalMatch.com, a prominent online attorney matching service.
Today the public faces higher barriers to obtaining legal services and representation in the courts than ever before. Rising prices for legal services, reduced staffing at law firms, and COVID-19-related restrictions discourage the public from utilizing the courts. The State Bar of California's website states its "mission is to protect the public," and claims to work to "improve the delivery of legal services to low and moderate income Californians." In order to improve access to legal services, the bar should promote the use of online attorney referral and matching systems. Instead, the bar is waging war against LegalMatch.com, a prominent online attorney matching service.
The State Bar's general counsel sued LegalMatch, seeking an injunction barring LegalMatch from operating in California. The bar alleges that LegalMatch operates a legal referral service, per the recent appellate court decision in Jackson v. LegalMatch.com, 42 Cal. App. 5th 760 (2019), and therefore it must comply with certification requirements set out in Business and Professions Code Section 6155. Notably, the bar's complaint lacks any allegation that LegalMatch actually harmed the public. Additionally, the bar brought an ex parte application seeking an injunction barring LegalMatch's operations, asserting that LegalMatch refused the bar's demands that it submit a legal referral service certification application. The superior court denied the bar's application, finding that the bar made misleading factual representations to the court, because LegalMatch's certification application was actually pending at the bar at that time.
Since then, the State Bar has denied LegalMatch's certification application, based on numerous, presumably correctable factors, each laid out in the bar's amended complaint. The bar's website shows that multiple for-profit online legal referral service providers have complied with Section 6155's requirements and obtained certification. Therefore, it is fair to assume that LegalMatch also should be able to satisfy the conditions for certification by correcting its operations to meet the bar's detailed regulations pursuant to Section 6155.
It seems clear that the State Bar had other available options, short of outright denial of certification. Rather than simply deny, the bar could have allowed LegalMatch the opportunity to correct the alleged defects and submit an amended application. Indeed, such a practice was followed by the bar in the past.
Further, the choice to pursue LegalMatch is in itself perplexing. The State Bar has failed even to allege that LegalMatch's actions have ever harmed a prospective client. Additionally, the bar's war against LegalMatch ignores other, similar uncertified online attorney-matching services and which -- unlike LegalMatch -- appear to involve improper fee-splitting practices.
The State Bar's arguments asserted against attorney matching services echo those historically made against attorney advertising, in general: the activity is unprofessional; advertisers could potentially make misrepresentations; and, the lawyer may not perform competently or ethically. But all of these problems can -- and do -- occur regardless of how the client has found the lawyer. The fact that any given lawyer may advertise and act improperly does not mean that honest and non-intrusive commercial speech isn't entitled to constitutional protection. The fact that the client found the lawyer through a matching service's truthful advertising has nothing to do with the lawyer's improper acts, should they occur.
Unlike the State Bar's general counsel's office, the State Bar Board of Trustees is investigating reforming the regulations governing legal referral service providers in the online space. For example, this could include allowing online "automated referral or online matching services" to operate without obtaining certification from the bar. The Board of Trustees seems to acknowledge that collective advertising organizations like LegalMatch should be permitted to operate outside of the certification requirements. Indeed, truthful advertising and referral services both further the bar's goals of helping the public gain greater access to the legal system.
Other jurisdictions allow services like LegalMatch to operate. For example, ABA Model Rule 7.2 appears to allow companies like LegalMatch to operate outside of the legal referral service regulatory system, so long as the service maintains itself as an advertiser, orients itself toward attorneys, automates the matching process, and refrains from representations regarding the attorneys' qualifications and experience. Texas, for example, has issued an ethics opinion explicitly allowing such matching services.
In order to further the California State Bar's stated goal of increasing public access to legal services, the bar should accept that advertising companies like LegalMatch offer greater access to legal services, to people who don't know any lawyers. There simply is no empirical evidence that matching services pose any actual harm to the public. The bar has better uses for its limited resources than the overzealous regulation of attorney matching services.