In his quest to shut down pay-per-performance marketing in the legal industry, Zenas Zelotes has relied heavily on a single document: a Virginia draft opinion issued on April 14, 2009 which tentatively suggested that attorney participation in a third-party website could violate the Rules of Professional Conduct if that website charged on the basis of geographic exclusivity or on a per referral basis.
The opinion was never final; it was posted with a request for public comment. In fact, after Mr. Zelotes began publicizing the opinion, the Virginia State Bar Standing Committee on Legal Ethics opted to add a note to its website emphasizing the fact that this was a DRAFT opinion which was subject to change and should not be relied upon.
Now, the Virginia Committee has taken another step forward by withdrawing the draft opinion. In a letter to attorneys who had offered comment on the draft opinion, the Committee indicates that the opinion is being withdrawn for “future consideration”, and that if the Committee should agree on another draft opinion in the future, the process would begin again with a new request for public comment.
While the larger question remains unresolved in the state of Virginia, the withdrawal of the opinion is a clear recognition that the issues involved are complex and require more than quick reference to the language of rules promulgated before Internet advertising was even contemplated, let alone a reality.
With this new development, we are even more confident that thorough analysis will reveal that the advertising model employed by Total Attorneys is entirely within the bounds of ethical, professional conduct.