I. Introduction

Beginning in 2009,[1] large corporate services law firms began to offer free interactive services and downloadable forms on their websites. Today, there are still only a handful of AmLaw 200 firms that provide free interactive legal resources, but the number is increasing. A similar trend, though much more dramatic, is visible in the number of free legal information apps provided by AmLaw 200 firms.[2] The types of resources available include several different types of term sheet generators, privacy policy generators, incorporation forms and generators, financing documents, content-based apps, and more.

Given that the academic discussion of large law firms and technology is mostly centered on the lack of incentives for innovation and efficiency increases,[3] investments in technological tools evidences by these resources are surprising—especially since many firms continue to charge for the services that they are now, ostensibly, enabling consumers to complete on their own using free resources. Even more puzzling, is the fact that many of these tools resemble lead generation tools used by smaller firms to collect prospective client information.[4]

This paper analyzes these resources in the context of online marketing strategies that have traditionally been used to bolster the business of small- and medium-sized firms while taking into account the ethical obligations associated with hosting such content. Data was gathered through a handful of qualitative interviews with AmLaw 200 attorneys and firms who have entered this territory previously untested by large, corporate firms. The investigation was focused on the strategies behind the deployment of such tools and whether the incentives for online marketing and innovation at large firms have changed.

The investigation uncovered that, despite resembling lead generation tools, free resources are being offered, not in order to systematically collect prospective client information, but to enhance and modernize law firms’ brands as thought leaders with substantive expertise. Further, like small- and medium-sized firms and legal resource providers, large law firms are using tools that are not clearly addressed in ethics rules while relying on disclaimers to minimize potential liability associated with such tools. It is clear that better marketing is one sign of a shifting legal marketplace, but innovative marketing tactics are not necessarily indicative of deeper changes in the practice of law.

II. The Role of the Internet and Technology in Legal Marketing

A. The State of Online Engagement by Law Firms

The potential of technology to expand the reach of law firms has mostly been discussed in the context of solo practitioners and small- to medium-sized firms.[5] The discussion surrounding large law firms mostly concerns their reluctance to engage in the new legal marketplace which is characterized by increased access to legal information that drives price competition, changing fee structures, and unbundled legal services.[6] Thus the state of technology and the law is that the AmLaw 200 has the most resources but weakest incentives to invest in developing revolutionary legal technologies,[7] while solo practitioners and smaller firms have the most to gain but little resources to invest.

This dynamic has not stopped an increase in cyberlawerying and the use of less revolutionary technologies to change the practice of law for small- and medium-sized firms.[8] Not surprisingly, this change is driven by consumer demand and increased competition.[9] Instead of the Yellow Pages and personal references, the Internet is now the most common method of searching for legal services—and people aren’t simply contacting the first attorney or law firm they come across. [10] Rather, “empowered by the deep pool of resources available online, consumers and corporate counsel alike are inclined to educate themselves about various legal issues through blogs, online video and conversations in online community sites before they even compile a list of potential lawyers.”[11] Even when consumers receive personal references, chances are they “go back online to check out the lawyers’ credentials, experience and testimonials and get feedback from other clients and colleagues” if available.[12]

These trends have pressured the legal community and firms—entities notoriously slow in adapting to change[13]—to at least develop a website. These sites now serve as “the shingles, business cards and phone-book ads of modern lawyering.”[14] Lawyer and firm websites are the “starting point for any online marketing strategy.”[15] As the first impression offered to prospective clients, websites have great import in introducing and engaging prospective clients. Having a website that can generate traffic is a big component of a successful site and the best way to attract visitors is to fulfill their demand for legal information.[16] The best websites for small- and medium-sized firms are using this opportunity to (1) convey a brand, (2) start a conversation with site visitors, and (3) generate leads.[17]

Creating and Conveying a “Brand”

A good firm website creates a “brand”—a “distinct identity based on a promise of value that is different from any other.”[18] A brand is conveyed by the website design, the content, organization, and format of information, and any other features of the site.

The content allows firms and attorneys to showcase their expertise[19] as well as increase site visibility by generating terms that can be found through search engines such as Google.[20] As with the goal of an in-person interaction with a prospective client, the goal of an online interaction is to provide information that will up the “the “know, like, trust” factor.”[21] A Pew study found that consumers trust online information: “nearly 40% of Americans doubted a medical professional’s opinion or diagnosis because it conflicted with information they had found online.”[22] Providing legal information in a credible manner can thus increase prospective client trust.

Since brands are the unique value-add that individual firms and attorneys provide, the exact content will vary depending on what that value is. These unique characteristics can be niche practice areas, personal ties to the community, or the culture of the firm. But almost universally, attorneys hope that their website visitors leave with the impression that they are “important, confident and a leader.”[23]

Starting a Conversation

Online marketing is qualitatively different than print advertising. An ineffective way to use online advertising is to “‘market at’ the public rather than engaging in the conversation.”[24] The Internet, as a medium, “is more about content and conversation than direct, hard selling.”[25] One expert has even reduced “effective law firm marketing” to “creating great web content and delivering it to the right audiences.”[26]

Beyond providing information, adding interactive features can make a website “more than a first-stage ‘brochure-ware’ website.”[27] Interactive features can take a variety of shapes, including contact forms, client portals, white paper and newsletter subscriptions, real-time chat, web calculators and advisers, or simply links to more information and resources.[28] Web-based advisers and calculators are “a form of self-help legal information for prospective clients that empowers them to answer their own basic legal questions before they have to directly contact the law firm.”[29] These interactions “add[] a layer of trust to the law firm because it is giving the power to visitors to make their own decisions regarding how, when, and where they choose their legal assistance.”[30] Interesting and helpful interactive features will be linked to on other websites and other links can be featured on your page as well. These references help a site get on the “hyperlinked superhighway.”[31]

Another way to increase the interactivity of a legal website is to include links to attorneys’ social media accounts which can add a personal touch as well as provide more legal information. Social media interactions also present an opportunity to “provide potential clients with the kind of in-depth information that they’ve come to expect to find online prior to making any kind of decision requiring a significant commitment of resources.”[32] Yet encouraging consumers “share” and “post” in return for free legal information or tools must be wary of the rules prohibiting paid endorsements of attorneys.[33]

Lead Generation

In recent years, there has been a steady development in third-party lead-generation services focused on providing small law firms with a “steady stream of prospective clients.”[34] The focus on small firms is based on the fact that they are highly concerned with finding new clients.[35] Most third-party generators operate “on the same basic premise: They connect consumers who have a specific legal need or issue—think: personal injury, disability or product liability claims—with attorneys who specialize in that realm.”[36]

In most instances, the law firm or attorney provides something of value to a site visitor in return for contact or other basic information. [37] These initial contacts are then screened to produce “[t]he most important component of any lead-generation initiative”: “worthwhile leads.”[38] Unqualified leads will waste time and resources since there must be quick follow-up with prospects as they are likely visiting other law firm websites.[39]

Focus on the AmLaw 200

If the legal community in general has been slow to adapt to online marketing strategies, the AmLaw 200 has generally been regarded to move at a snail’s pace. A 2009 survey of law firm websites found that on the websites of the biggest and most successful law firms “[s]ameness rules.” The sites were so similar that the researchers were able to “re-create the prototypical site just like linguists can create the Proto-Indo-European language from word fragments.”[40] These sites simply follow the norm of a modern “‘professional site’” like it is simply the new “black, engraved letterhead” of 20 years ago.[41]

Since the first step of a successful online marketing campaign is conveying a unique brand with quality content, the AmLaw 200 is failing through conformity. They are largely stuck in the old way of “marketing at” the public rather than engaging with them.[42] Since this first step isn’t there for most AmLaw 200 firms, it would be unexpected to see the second step of engaging visitors in conversation or the third step of lead generation.[43]

B. Ethics Concerns of Online Engagement

The overarching concern of ethical rules regulating attorney communications is the prevention consumer deception—both offline and online. But online communications create additional ethical questions given their existence in a “borderless medium”[44] and the ability of generators to provide legal information at such a specific level, that some might consider it advice. The ABA has not produced rules or even best practices that provide clear answers to these questions, leaving many who choose to enter technologically advanced territory without ethical rules directly addressing their actions.

The best practice guidelines produced by the ABA Commission on Ethics 20/20 provide some helpful tips to lawyers looking to avoid inadvertent violations of ethics rules, but left interactive features and lead generation tactics largely unaddressed.[45] Further, these guidelines fail to take account of the wide availability of free online information. Instead, “the assumption that remains at the core of most ethics opinions related to lawyer advertising is that most consumers are not empowered to select or educate themselves on the variety of options available for handling their legal matters.”[46] This is also true for large law firms, despite the fact that a large part of their clientele is made up of sophisticated corporate counsel, their websites are available to the general public. Below I outline some of the main rules governing electronic attorney communications which will be used to analyze the how large firms are addressing ethics concerns in Section IV.

Legal Advice v. Legal Information

The main line that attorneys navigating the online space need to mind, is the line between legal advice and legal information. Once this line is crossed, concerns arise regarding (1) the creation of an attorney-client relationship and (2) the unauthorized practice of law by non-lawyers and lawyers not licensed in the jurisdiction where the advice is being received.

The exact definition of legal advice varies by jurisdiction. The ABA’s Best Practice Guidelines for Legal Information Web Site Providers define advice as: “recommendations tailored to the unique facts of a particular person’s circumstances,” not general or static legal knowledge.[47] In court, the question of whether advice creates an attorney-client relationship is analyzed from the perspective of the reasonable belief of the client.[48] To create such as belief, “the lawyer’s advice must be specific to the facts of the putative client’s case.”[49] Such specific advice is the “hallmark of the practice of law” and is reasonably relied on by a client since the “advice [] is specifically tailored to his particular request.”[50] An attorney-client relationship can be created in person, or through electronic communication such as chatting, email, or social networks.

In practice, this bright line can be hard to find. State definitions of the “practice of law” vary widely.[51] Some applications are not so intuitive. For example, whether filling out forms, or help in filling out forms, constitutes the practice of law is one area that has been long debated. One of the most famous cases in this area was the publication of a self-help book, complete with forms and instructions, on how to avoid probate. In Connecticut, the Supreme Court found that such a book surely did more than provide legal information.[52] In particular, it was found that the “determination that a given form should be followed without change” is the same as the “determination that it should be changed in given particulars.”[53] In New York, the written instructions in the book were first found to be clearly legal “advice” before the decision was overturned based on the lack of personal interaction and first amendment concerns.[54]

In cases involving do-it-yourself kits in areas such as divorce or bankruptcy, courts have also issued conflicting decisions. “The cases generally follow the traditional distinction between simply typing information provided by the consumer without alteration or advice, which is permitted, and making changes or suggestions based on the information provided, which is prohibited.”[55] Yet some courts have not found the distinction persuasive and focused instead on the potential harm to a consumer relying on such resources. Even furnishing such non-personalized advice “leads to a false sense of security and often unfortunate circumstances for the general public.”[56]

In 1999 the Texas legislature changed the state’s definition of the practice of law[57] in response to a federal district court’s finding that a computer program similar to TurboTax, called Quicken Family Lawyer, constituted the unauthorized practice of law.[58] The court ruled as it did based on the software’s ability to “select” and “customize” legal documents with “air of reliability” that increased the chances “that an individual user will be misled into relying on them.”[59] After this modification, Texas has become “the only state with a practice of law definition that allows expansive consumer use of interactive technologies.”[60]

In recent years, LegalZoom has become the target for allegations of engaging in the unauthorized practice of law. LegalZoom was founded in 2001 and offers online preparation services for basic legal documents such as incorporation papers, uncontested divorces, and simple wills.[61] The company uses logic trees to walk consumers step-by-step though the creation of the desired documents which are then reviewed by non-lawyers. In 2008, the Authorized Practice Committee of the North Carolina State Bar sent the company a cease-and-desist letter expressly rejecting the company’s claim that its services did not constitute legal advice.[62] Years of litigation has still not resolved the question of whether LegalZoom is engaging in the unauthorized practice of law, especially as to it more complex services.[63] While the legal battle continues in North Carolina, in March 2014 the South Carolina Supreme Court approved the company’s business practices finding that the technology used was similar to interactive self-help offered by various state and local agencies.[64] LegalZoom has faced unauthorized practice lawsuits in other states as well: settling two class actions in California in 2012, paying $1.9 in attorneys’ fees in Missouri as part of another class action, and a 2010 lawsuit brought by the state of Washington alleging consumer protection violations.[65]

A lawyer practicing law in a state they are not licensed in also constitutes the unauthorized practice of law. While the rules are very clear in regards to print and broadcast media, in which an attorney must expressly direct a communication to a specific population, on the Internet any person in the world can view lawyer communications. If an attorney advertisement in a state is viewed as implying that the attorney is licensed in that state, “the question arises as to whether a website accessible by a state’s residents constitutes solicitation of those residents such that the attorney could be charged with the unauthorized practice of law if not admitted to practice law in that state.” [66] New York’s unauthorized practice of law statute[67] could be construed to this effect. Lawyers can avoid implying such authorization by clearly specifying in which state they are licensed and can take on clients.”[68]

Despite jurisdictional variances, courts have developed a “sliding scale” test for purposes of assessing whether online activity constitutes the practice of law. At the safe side of the scale is “the passive website that contains only information and offers no interaction with the visitor.”[69] In the middle of the spectrum are cases whose outcomes largely depends on the facts and jurisdictional variances. These are “interactive websites where information is communicated and exchanged between the site operator and visitors to the site, including downloadable files or links to other websites.”[70] Over time, jurisdiction. And at the end most likely to give rise to the assertion o jurisdiction, are those “sites that conduct business over the Internet by engaging in substantial activity within a forum state, such as 1) sales; 2) solicitations; 3) acceptance of orders; 4) links to other sites; 5) product lists; and 6) the transmission of files.”[71]

Further, “courts have consistently taken the position that selecting which form to use, giving advice about which information ought to be included in a form, or soliciting information from a lay person and then making determinations about how to use the information in the form is the equivalent of practicing law.”[72] Under this precedent, a site or tool that “provides a questionnaire to consumers, and then uses the information on the questionnaire to generate a personalized legal document,” would be the unauthorized practice of law as it would have to provide “advice” in determining how to use the raw information entered by the user.[73] Simply inserting answers into a blank form would be a scrivener service and “thus exempt from unauthorized practice concerns.”[74]

Data Security

The Model Rules of Professional Conduct provide a clear directive on an attorney’s duty to keep client information secure. Model Rule 1.6(c) provides that “a lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Lawyers also have duties to maintain the confidentiality of prospective clients. Yet exactly when a prospective client relationship is created in the online environment is unclear. Model Rule 1.18(a) states “[a] person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client” (emphasis added).

A comment added by the ABA Ethics 20/20 commission further explains the that a consultation can occur in any medium and “is likely to have occurred if a lawyer . . . specifically requests or invites the submission of information about a potential representation without clear and reasonably understandable warnings and cautionary statements that limit the lawyer’s obligations, and a person provides information in response.”[75] It would seem that a lawyer would also have a duty maintain the confidentiality of information submitted in this manner. Tools such as document generators, which invite the submission of information, could be construed as an initial consultation if not accompanied by the required warnings. Nevertheless, information gathered though electronic submission could very likely contain sensitive information.

Disclaimers of Liability

The rules, as described above, restrict the ability of attorneys and firms to fulfill demand for free and low-cost legal information and assistance in order to protect the public from relying on misleading information. Yet many attorneys and firms continue to tread the line between legal advice and information very closely, and research has shown that this line is crossed quite often in practice.[76] In order to avoid liability for practices that could be construed as ethical violations, the legal community has ubiquitously employed disclaimers in Internet communications. These disclaimers deny the intent to form an attorney-client relationship, deny the characterization of communications as “advice,” and encourage people to seek the advice of an attorney if they have actual legal needs.

From the attorney perspective, the use of disclaimers offers several advantages, including the ease of deployment and the potential to reduce the risk of litigation. From a consumer perspective, disclaimers can potentially “decrease the likelihood of reliance on incorrect or misleading information.”[77] Yet the effectiveness of disclaimers from either perspective has been questioned.

The first problem with disclaimers “is that the language is likely to be technical, legal jargon.”[78] For example, “attorney-client relationship” has a very specific legal definition and implications beyond the understanding of most lay people. The same problem arises for “legal advice”—a phrase that surely must confuse lay people as they come across it as they seek out general or even specific advice relevant to their situation.

Second, “much of the legal advice-giving activity online seems to hinge on the belief that blanket use of disclaimers will protect lawyers against all risks associated with their conduct.”[79] Such use implies the view that disclaimers are a sort of “free pass” to engage in advice-giving online. But disclaimers may not be as effective as attorneys employing them hope: some “courts have suggested that conduct inconsistent with the lawyer’s overt denial of the intent to create an attorney-client relationship may override the disclaimer.”[80] Further, several “bar opinions have taken the position that an attorney-client relationship, once created, cannot be disclaimed.”[81]

Thirdly, taken to its logical extreme, “if disclaimers [are] allowed in the Internet context, there is no reason to tell ‘real-world’ professionals that they cannot present an incoming patient or client with a disclaimer of liability as well.”[82] Such a practice would have grave implications for consumers when confronted with legal malpractice and would put confidential information at risk. These problems are precisely why “[c]ourts have long held that professionals cannot contract out of their professional obligations.”[83] “[I]t would defy that logic to allow cyberprofessionals separate consideration.”[84]

Lastly, any benefit from disclaimers is only derived if consumers actually read them. If the rate at which privacy policies and terms of service are read is any indication, most people who encounter legal disclaimers do not read them. It is unclear whether changing the size, color or placement of the disclaimer’s text actually increases reading rates. These changes might just act as a stronger signal to skip over the text as consumers have been conditioned to ignore such legalese.

III. The AmLaw 200’s Use of Free Interactive Tools.

The initial appearance and now growth of AmLaw 200 websites that feature free interactive advisers, calculators, and generators is puzzling given the general state of online marketing at these firms.[85] It is also intriguing from the perspective that the most successful firms lack the incentives to change their fee structures or increase the efficiency of their legal services, and yet the technology being offered is very similar, if not the same, as the technology being employed to do just that by low-cost legal service providers. Further, on the surface, the tools resemble many of the tools and free-somethings of value that are offered in lead-generations initiatives.

In order to discover the incentives, benefits, costs, and strategies behind offering these free resources, I interviewed attorneys and marketing officers from a handful of AmLaw 200 firms which host at least one interactive feature on their website.[86] The conversations spanned the development, deployment, and success of the tools, as well as the degree of engagement with the ethical obligations involved in providing such tools and materials. The responses generated from this sample of firms are then extrapolated to the corporate legal world in general.

Several trends emerged from the interviews. One of the most interesting results is that, despite resembling lead generation tools, none of the law firms interviewed are using these resources to collect information about users and for the most part, have little interest in such information. In fact, beyond tracking the number of app downloads, no data is collected on how frequently the resources are used or how many inquires the tools generated.

Yet there were several other benefits associated with offering free interactive resources which the firms cited as justification for the substantial costs of initial investment and continued operation. The foremost of these benefits was an enhancement of the law firm’s brand as a technology savvy, thought leader with substantive expertise.

A. Benefits

The primary goal of hosting free legal resources was to enhance the law firm brand in the eyes of all visitors—prospective clients, clients, colleagues, and even those visitors unable to afford corporate-firm rates. There were several common traits that the law firms interviewed wanted to project.

For the firms hosting the most interactive tools, such as the various document generators, there was a strong desire to demonstrate a technological capacity for efficient legal work. Featuring these interactive tools was an implicit way to convey the firm’s recognition of how technology is changing the legal market. A quiet nod toward increasing efficiency was used as a signal that the firm is forward-thinking and will not be left behind as market conditions shift. Yet actual investment in technologies used in-practice varied widely among firms using this strategy. Wilson Sonsini Goodrich & Rosati distinguishes itself by indicating upfront that the free technology it offers is more than just marketing. The webpages featuring its two free term sheet generators state: “This term sheet generator is a modified version of a tool that we use internally, which comprises one part of a suite of document automation tools that we use to generate start-up and venture financing-related documents.”[87]

Another trait associated with being a thought leader was displaying a willingness to share information that could improve efficiencies in the greater market. Sharing information communicates confidence in the value of the skills a firm and its individual attorneys bring beyond just legal information and forms. The main motivator for sharing doesn’t necessarily have to be marketing, but could be altruistic. This seems to be the goal in the creation of SeriesSeed, a site that offers “open source” financing documents for early-stage investment in an effort to “reduce both the time and cost of a financing transaction.”[88] While one could easily find that Ted Wang, a partner from Fenwick & West, is the author and curator of the documents, the inference of marketing has been removed as the website has its own domain and does not feature the firm logo.

Providing quality legal information and resources also benefits the firm brand by demonstrating substantive expertise. While a single interactive tool could provide this benefit, firms who really wished to convey expertise in a single practice area opted to create comprehensive pages with multiple resources. This looks to be the concept behind Cooley’s newly released “CooleyGo.”[89] It is definitely the most robust offering from any law firm featuring several generators that produce incorporation documents, privacy policies, and non-disclosure agreements and other legal information—all toward geared entrepreneurs and emerging companies.[90] Similarly, Orrick provides a free “Start-up Tool Kit,” which offers three term sheet creators and a forms library with over twenty-five forms.[91]

Outside of contracts and forms, mobile apps are also being used to demonstrate substantive expertise given the capacity for depth and ease of access in such programs. Like the webpages listed above, many law firms publishing apps have the goal of creating a one-stop shop for information in a given practice area that will become the “go-to” source for those who need it. The apps span several substantive areas such as global anti-bribery and corruption laws, state data breach notification laws, global restrictive covenants, and many, many more.[92] Interestingly, AmLaw 200 firms are also publishing apps that act as firm brochures, for recruitment, and for conferences.[93]

Notably, none of the above goals are easily measureable, and no firm indicated an attempt to do so. While such nonchalance toward measuring success may be surprising at first, the propensity of the biggest and most successful firms to invest marketing resources without measurable results is quite high. One look at the amounts of free “swag” available during the annual round of on-campus interviews indicate that large firms do not need to justify marketing budgets with hard numbers in the same way that small firms do.[94]

For all the law firms interviewed, generating a substantial number of inquiries from prospective clients was a very low priority. Though these inquiries were definitely generated, in some firms weekly, there were no mechanisms in place for the systematic tracking of these inquiries or how often they produced paying clients. It is simply not the way large firms are assessing the success of the resources offered.

There were several reasons why the firms were not interested in lead generation that involved collection of prospective client information. First, assuming that the tools would generate qualified leads, large law firms already have a steady flow of work and do not necessarily have the capacity to follow-up on and begin working on a large number of new client matters. Second, there was a common perception that engaging in such lead generation would be unseemly and actually hurt the image of the law firm as “elite” and “prestigious.” Third, in the case of apps, structural barriers can actually prevent the collection of user data.[95]

B. Investment

Many of resources require significant investment of time and resources to create and maintain. Because these tools are viewed by clients and potential clients, it is highly important that the sophistication, ease of use, and appearance of the tools reflect the branding goals of the firm. The costs of offering such a resource largely depend on the origins of the information and technology, the format, and complexity.

Developing a resource without having a preexisting source of organized information, requires more initial investment, both in time and resources, than adapting information or tools already in use. While marketing may be the primary incentive, in many cases the product could be slightly altered to serve an internal purpose as well. Developing a resource from square one usually occurs when an attorney with substantive expertise desires to create a resource that compiles and organizes already-public information that must currently be accessed through multiple sources. Resources like this are usually compiled in apps that require an initial investment with a third-party developer, but can then be managed largely internally.

The costs associated with developing a document generators or suite of document generators are much higher. Often the technology must be licensed from a third-party company that specializes in providing businesses with such tools.[96] Generators also require more attorney time to develop, as the instructions can be quite numerous and possibly lengthy. A firm that has not made significant investments in firm-wide knowledge management or document management internally will have a steep learning-curve and will have to develop a new relationship with a third-party developer.

The far more common route for developing a unique legal-information resource, at least for these early-adopters interviewed, is adapting internal resources already in use. This strategy is employed regardless of the complexity of the resource—from blogs to document generators. Initial investment is thus greatly reduced, but can still be significant, especially if it is necessary to work with third-parties to adapt the tools. Briefs, memos, and other internal reference resources contain valuable information that can be used publically once stripped of confidential client information. Attorneys are constantly generating such information for internal use so this strategy is naturally suited for resources that need new content to flourish, such as blogs or mobile apps. For both passive information and interactive tools, adaptation for the general public also requires a removal of legalese and legal advice (to what extent depends on the attorney’s or firm’s comfort with reliance on disclaimers).

A significant concern for firms choosing this approach, especially in the document generator arena, is the prospect of a diminution in value a tool will suffer as a result of being made available to the public—and competitors. While this danger may be exaggerated for elite firms with clients that prefer to pay for professional services, a consideration of the risk makes business sense. Strategies for selecting a tool that will not wholly cannibalize a firm service include (1) concentrating on services that are already highly commoditized; (2) providing a single step in a more lengthy process, or (3) removing language that could make the document actually legally binding. Which strategy to employ depends on the exact benefit the firm seeks to achieve.

C. Managing Ethical Obligations

Large law firms, like solo practitioners and small firms, are relying on disclaimers to reduce liability. To the extent that the interactive tools “select” which form to use, “give advice” about which information to include, and decide how to use raw information provider by the user, it is likely that state courts would find the tools to be practicing law.[97] Other courts however, such as those in South Carolina or Texas, would most likely not find the tools to be the practice of law since they resemble services currently being offered in those states.

Comfort in inhabiting this gray area varied widely among the attorneys interviewed. Those firms who were most concerned about the ethics rules were very intentional about avoiding the furthest end of the sliding-scale test used to analyze whether a communication or service constitutes the practice of law.[98] These firms made a point about not including anything that could be construed as legal advice and not offering tools that would produce a legally-binding document. Other firms were much more comfortable relying on disclaimers to prevent liability while providing sophisticated interactive resources that produce complete documents.

In some firms, as provision of interactive resources has increased, comfort with disclaimers has increased as well. That comfort seems to be based on a risk-benefit consideration: the necessity of being viewed as a thought leader, especially in the area of emerging companies, and a decreased risk of being singled out by the ABA or a state bar for resources that several others provide as well. Yet many of the other ethical obligations are actually compatible with large law firms’ use of free legal resources.

First, the lack of data collection dispels any concerns over data security, creating conflicts of interest, or creating prospective client relationships. While it could be said that the tools are “soliciting” information and giving responses, the consultation is not about the potential of forming an attorney-client privilege and no information is ever seen by a live attorney.

Second, courts and the public are less worried about the potential to deceive sophisticated business entities with free and low-cost services. While these clients certainly do not want to spend unnecessarily on legal bills, they understand the value of hiring an expert to minimize risk and achieve the best possible outcomes. Their time is also valuable. This means that for these clients, there is little value in free forms and document generators that provide finished products with an “air of reliability.” Just as most people would prefer to pay a mechanic to fix their car than to go to a mechanic shop that provided free tools and instructions, corporations and promising ventures would rather pay law firms to prevent and fix legal problems than utilize free tools and risk an error.

IV. Adapting to Market Constraints and the Need for Clearer Ethical Guidelines

A closer analysis of these websites and tools shows that some in the AmLaw 200 are beginning to focus on their online marketing strategies. Specifically these firms are advancing past the “brochure-ware” website and integrating interactive elements that engage and empower site visitors. None of the law firms are using these tools for systematic lead generation because generating a steady stream of new clients are not a concern and it is doubtful that many sophisticated corporate leads could be generated in a medium open to the general public. None of the attorneys interviewed had a solid strategy for overcoming the obstacle of targeted delivery and the effectiveness of current efforts are impossible to analyze given the lack of data collection and analysis.

While those at the very top may be disinterested and dismissive of lead generation, it is hard to believe that no AmLaw 200 firm would find value in a lead generation service if the methods could produce qualified clients. This will be increasingly true as “[o]nline marketing exposes the clients of elite firms to the prospect of more affordable, convenient alternatives in the form of lawyers who are technology savvy, use cloud computing, and can deliver legal services online.”[99] As law firms face this shifting legal market and develop standardized and then systematized work programs that can be sold to multiple clients,[100] the capability to find and serve large numbers of corporate clients looking for limited legal services may be the key to success for firms outside of the AmLaw 100.

For now, firms have adapted to the obstacle of target delivery by focusing their online marketing strategies on practice areas in which their clientele will most likely be searching for low-cost legal services online: start-ups. This focus is evident by the emphasis on incorporation and financing resources in the current free tools.

The emerging companies market is one of the broadest markets that large law firms typically service and today’s entrepreneurs are high in technology savvy and “can-do” attitude. Combined with high resource and capital restraints, it’s no surprise that entrepreneurs are accustomed to finding services on the Internet. High demand and the availability of companies like LegalZoom to provide incorporation services at flat fees, has made startup legal services one of the most highly commoditized practice areas in which large law firms participate.

Large law firms that are providing free resources to entrepreneurs are (1) building trust with those who are unable to afford large firms rates now, but will be able to in the future if their venture succeeds; and (2) relying on the assumption that the most promising ventures will value hiring a professional to minimize future risk. Even then, some large law firms have been pressured to offer flat fees for these services—if not officially then unofficially.

Firms have also adapted to the obstacle of targeted delivery by publishing targeted content, mostly in the form of free mobile apps. In fact, apps that detail, analyze and explain complex areas of law are the most common way law firms are using technology to reach prospective clients. In 2013 alone, thirty-six firms in the AmLaw 200 produced a total of fifty-three mobile apps—a 63% increase over the number of apps created in 2012.[101] Many of these apps provide information that is only of value to sophisticated users, other attorneys and business clients. The use of smartphones to access information is only increasing. As of 2014, U.S. adults spend more time on smartphone browsers and apps than on PC Internet browsers.[102]

The success and failures of focusing on startups and using apps is largely anecdotal. Given the costs of initial investments, firms with stricter marketing budgets will have to discover methods of tracking the success of these tools in order to measure their return on investment. Such measurements would also drive firms to publicize their free tools and resources more broadly. With only a couple exceptions, the existing resources have been published without much fanfare and are hidden deep in firm websites so that they are hard to find unless one knows what they are looking for.

Given the fact that many first-time entrepreneurs have no more legal savvy than the general public and are resource constrained, ethical obligations must be analyzed with more than just corporate general counsel in mind. As far as “self-serve” documents are provided, sometimes with a generator, it is likely that highly resource-constrained entrepreneurs will be lulled into relying on self-produced documents with the confidence that they were obtained in a systematic method provided by an expert law firm. Yet because these resources are being provided for free, there is a reduced worry that people are being deceived for economic motives. Nevertheless, reliance on disclaimers as a cure-all when the ethical obligations are unclear is ill-advised until the ABA can clarify the guidelines for their use.

V. Conclusion

Online advertising including free tools and information is only going to increase in both the AmLaw 200 and beyond. While lead generation for large corporate firms has not been developed, it is extremely likely once large law firms begin offering more standardized services in response to demand for cost competition in legal services. These services might look more like the “matchmaker” services which pair small business owners with qualified attorneys.[103] When that market arrives, the demand for lead generation will arrive as well. Until then, these resources and tools will be used to convey the unique qualities and expertise that the firms deploying them want their clients and prospective clients to understand. Interestingly, these services might take a bite out of the low-cost legal services industry by providing essentially the same resources at no-cost.

As the number of these resources increase, the ABA should develop new rules or at least best practices that address the use of disclaimers in conjunction with such interactive features. Given the value these tools could have, both for the public and for the law firms that deploy them, clearer guidelines could increase the quality of and breadth of resources offered while being sure that consumers are adequately protected.

 

[1] WSGR online venture financing term sheet generator, Startup Company Lawyer, Apr. 22, 2009, http://www.startupcompanylawyer.com/2009/04/22/wsgr-online-venture-financing-term-sheet-generator/.

[2] Neil Rosenbaum, LFM 2014 BigLaw Report: BigLaw Firms Have 68 Apps, Up 62% From Last Year, Law Firm Mobile, Mar. 17, 2014, http://lawfirmmobile.com/2014/03/lfm-2014-biglaw-report-biglaw-firm-68-apps-62-percent-last-year/ (last visited June 25, 2014).

[3] See, e.g., Richard Susskind, Tomorrow’s Lawyers 39 (Oxford Univ. Press 2013); Larry E. Ribstein, The Death of Big Law, 2010 Wis. L. Rev. 749 (2010).

[4] See What Can Lead Generation Do for Your Law Firm?, FindLaw, http://www.lawyermarketing.com/articles/what-can-lead-generation-do-for-your-law-firm/ (last accessed June 25, 2014); Richard Granat, New Law Start-Up Lead Generation Sites: What Lawyers Need to Know, eLawyering Blog, Sept. 12, 2012, http://www.elawyeringredux.com/2012/09/articles/legal-referral/new-law-startup-lead-generation-sites-what-lawyers-need-to-know/.

[5] See, e.g., Justin D. Leonarda, Cyberlawyering and the Small Business: Software Makes Hard Law (But Good Sense), 7 J. Small & Emerging Bus. L. 323 (2003); Nicole Black & Carolyn Elefant, Social Media for Solos and Small Firms: What It Is and Why It Matters, 83-FEB N.Y. St. B.J. 18 (2011).

[6] See e.g., Andrew Benedict-Nelson, “Recalculate the Future of Law,” Insight Labs, Nov. 22, 2013, (Interview with Daniel Katz); Bruce H. Kobayashia & Larry E. Ribstein, Law’s Information Revolution, 53 Ariz. L. Rev. 1169, 1171-72 (2011). See generally Herbert M. Kritzer, The Professions Are Dead, Long Live the Professions: Legal Practice in a Postprofessional World, 33 Law & Soc’y Rev. 713, 727 (1999) (“As clients and patients increase in sophistication (through education, access to information, etc.), they begin to demand direct access to lower-cost, nonprofessional providers of specific services.”).

[7] These technologies are the “disruptive technologies” that theorists have predicted are soon coming to legal practice. See Richard Susskind, Tomorrow’s Lawyers 39 (Oxford Univ. Press 2013).

[8] Margaret Hensler Nicholls, A Quagmire of Internet Ethics Law and the ABA Guidelines for Legal Website Providers, 18 Geo. J. Legal Ethics 1021, 1022 (2005) (“Increasingly, dedicated legal websites capitalize on this growing market demand by providing a low-cost alternative for millions of financially restricted or cost-conscious consumers”). See also Stephanie Kimbro, The Consumer Law Revolution: The Lawyer’s Guide to the Online Marketing Legalmarketplace (2013).

[9] Id.

[10] How do Clients Find Your Firm? Survey Says…the Internet, FindLaw, Apr. 18, 2014, http://www.lawyermarketing.com/blog/how-do-clients-find-you-survey-sayson-the-internet/ (last accessed June 25, 2014) (reporting survey findings that 38% of consumers search for attorneys online).

[11] Black & Elefant, supra n.5, at 19.

[12] Id.

[13] Kimbro at xiv (“lawyers have taken the stance of hesitant observers”).

[14] American Bar Association (ABA), Law Firm Websites that Work: These Firms Use the Internet to Get the Job Done, 95-APR A.B.A. J. 32 (2009).

[15] Kimbro at 4.

[16] See e.g., FindLaw’s Timely News Content Centers Keep Consumers, FindLaw, July 14, 2010, http://www.lawyermarketing.com/blog/findlaws-timely-news-content-centers-keep-consumers-informed/ (last accessed June 25, 2014).

[17] See generally, Kimbro, supra n.8,

[18] ABA, supra n. 14, at 34.

[19] Tasha Mayberry, No-Cost Ways to Generate New Leads via the Internet: Firms Can Use Special Tools & Implement Strategies to Optimize E-mail, Web Sites, Blogs & Social Media, 31 No. 1 Law. PC 6 (2013)

[20] ABA, supra n. 14, at 37.

[21] Id. at 35.

[22] Black & Elefant, supra n.5, at 19.

[23] ABA, supra n. 14, at 34.

[24] Kimbro, supra n.8, at xiv.

[25] Id. at xiv-xv.

[26] Id. at 21 (Expert Comment by Gyi Tsakalakis).

[27] ABA, supra n. 14, at 35.

[28] Kimbro, supra n.8, at 14-18.

[29] Id. at 17.

[30] Id.

[31] Id. at 19.

[32] Black & Elefant, supra n.5, at 19.

[33] Jon M. Garon, Technology Requires Reboot of Professionalism nd Ethics for Practitioners, 16 No. 4 J. Internet L. 3, 11 (2012) (“The firm arguably gave people something ‘of value’ (the shirt and the opportunity to win a prize) for ‘recommending the lawyer’s services’ (facebook post) and thus might be viewed as running afoul of the existing version of Rule 7.2.”).

[34] What Can Lead Generation Do for Your Law Firm?, FindLaw, http://www.lawyermarketing.com/articles/what-can-lead-generation-do-for-your-law-firm/ (last accessed June 25, 2014); Richard Granat, New Law Start-Up Lead Generation Sites: What Lawyers Need to Know, eLawyering Blog, Sept. 12, 2012, http://www.elawyeringredux.com/2012/09/articles/legal-referral/new-law-startup-lead-generation-sites-what-lawyers-need-to-know/.

[35] Id. (“New business development is a consistent source of concern—particularly for smaller law firms.”)

[36] Id.

[37] See also Mayberry, supra n.19 (“Build Your Prospect List With a Value Offering”).

[38] Id.

[39] ABA, supra n. 14, at 37 (2009).

[40] ABA, supra n. 14, at 35.

[41] Id.

[42] See supra n.24 and accompanying text.

[43] ABA, supra n. 14, at 37. See also Mayberry, supra n.19.

[44] Joel Michael Schwarza, Practicing Law Over the Internet: Sometimes Practice Doesn’t Make Perfect,

14 Harv. J.L. & Tech. 657, 666 (2001).

[45] See generally ABA Commission on Ethics 20/20, Introduction and Overview (Feb. 2013), http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20121112_ethics_20_20_overarching_report_final_with_disclaimer.authcheckdam.pdf.

[46] Kimbro, supra n.8, at 159.

[47] ABA Law Practice Division, Best Practice Guidelines for Legal Information Web Site Providers, ABA, Feb 10, 2003, http://www.americanbar.org/groups/law_practice/committees/elawyering-best-practices.html (last accessed June 25, 2014). See also Nicholls, supra n. 8, at 1025.

[48] Catherine J. Lanctot, Attorney-Client Relationships in Cyberspace: The Peril and the Promise, 49 Duke L.J. 147, 183 (1999).

[49] Id.

[50] Id.

[51] Cristina L. Underwood, Balancing Consumer Interests in a Digital Age: A New Approach to Regulating the Unauthorized Practice of Law, 79 Wash. L. Rev. 437, 447-49 (2004). See generally State Definitions of the Practice of Law, ABA, http://www.abanet.org/cpr/model-def/model_def_statutes.pdf (last visited June 25, 2014) (listing state practice of law definitions).

[52] Grievance Comm. v. Dacey, 222 A.2d 339, 341-43 (Conn. 1966).

[53] Id. at 346. See also Catherine J. Lanctot, Scriveners in Cyberspace: Online Document Preparation and the Unauthorized Practice of Law, 30 Hofstra L. Rev. 811, 823 (2002).

[54] N.Y. County Lawyers’ Ass’n v. Dacey, 283 N.Y.S.2d 984, 998 (App. Div.), rev’d, 234 N.E.2d 459 (N.Y. 1967) (“[a]t most the book assumes to offer general advice on common problems, and does not purport to give personal advice on a specific problem peculiar to a designated or readily identified person.” (Stevens, J., dissenting)).

[55] Lanctot, supra n.53, at 834.

[56] Fadia v. Unauthorized Practice of Law Committee, 830 S.W.2d 162, 165 (Tex. App. 1992).

[57] H.B. 1507, 76th Leg., Reg. Sess. (Tex. 1999). The amendment to section 81.101 explicitly states that “the ‘practice of law’ does not include the design, creation, publication, distribution, display, or sale . . . [of] computer software, or similar products if the products clearly and conspicuously state that the products are not a substitute for the advice of an attorney.”

[58] See Unauthorized Practice of Law Comm. v. Parsons Tech., Inc., No. 3:97-CV-2859-H, 1999 U.S. Dist. LEXIS 813, at *2 (N.D. Tex. Jan. 22, 1999), vacated, 179 F.3d 956 (5th Cir. 1999)..

[59] Id. at *18

[60] Underwood, supra n.51, at 448.

[61] LegalZoom, http://www.legalzoom.com/ (last visited June 30, 2014).

[62] N.C. State Bar Authorized Practice Comm., Letter of Caution Cease and Desist Re: Allegation of Unauthorized Practice of Law, File No. 07AP0011, Legal Zoom (May 5, 2008), http://www.directlaw.com/LegalZoom%2020080326%L̈OC.pdf.

[63] Order and Opinion, LegalZoom.com, Inc. v. N. Carolina State Bar, 2014 NCBC 9 (N.C. Sup. Ct. Mar. 26, 2014), available at http://www.lawsitesblog.com/2014/05/legalzoom-suffers-setback-north-carolina.html.

[64] Order, T. Travis Medlock v. LegalZoom, Inc., Case No. 2012-208067 (S.C. Mar. 2014).

[65] Robert Ambrogi, LegalZoom Suffers Setback in North Carolina, Law Sites, May 19, 2014, http://www.lawsitesblog.com/2014/05/legalzoom-suffers-setback-north-carolina.html.

[66] Schwarza, supra n.44, at 667.

[67] N.Y. Judiciary Law § 476-a.

[68] Black & Elefant, supra n.5, at 19.

[69] Schwarza, supra n.44, at 668.

[70] Id. at 669.

[71] Id.

[72] Lanctot, supra n.53, at 849.

[73] Id.

[74] Id.

[75] Comment on Rule 1.18: Duties to Prospective Client, ABA, http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_18_duties_of_prospective_client/comment_on_rule_1_18_duties_of_prospective_client.html (last accessed June 25, 2014).

[76] Lanctot, supra n.48, at 154.

[77] Katy Ellen Deady, Cyberadvice: The Ethical Implications of Giving Professional Advice over the Internet, 14 Geo. J. Legal Ethics 891, 900 (2001).

[78] Id.

[79] Lanctot, supra n.76, at 186.

[80] Id. at 191 & note 145.

[81] Id. at 191 & note 146.

[82] Deady, supra n.77, at 900.

[83] Id.

[84] Id.

[85] See supra Section II.A (Focus on the AmLaw 200).

[86] The results of the inquiry are discussed in general terms in order to maintain the confidentiality of the persons and law firms which participated. Any citation to tools and resources does not mean that that firm participated, nor does it imply an endorsement or denouncement of the practices used on a site.

[87] WSGR Term Sheet Generator (Convertible Notes), Wilson Sonsini Goodrich & Rosati, http://www.wsgr.com/WSGR/Display.aspx?SectionName=practice/termsheet-convertible.htm (last visited June 29, 2014); WSGR Term Sheet Generator, Wilson Sonsini Goodrich & Rosati, http://www.wsgr.com/WSGR/Display.aspx?SectionName=practice/termsheet.htm (last visited June 29, 2014).

[88] About Series Seed Documents, Series Seed, http://www.seriesseed.com/posts/about-series-seed-documents.html (“I feel very fortunate to be a part of the startup company ecosystem. Drafting these documents is a small way that I have sought to give something back to the community.”).

[89] CooleyGO, http://www.cooleygo.com/ (last visited June 30, 2014) (CooleyGO was launched on June 30, 2014).

[90] Documents, CooleyGO, http://www.cooleygo.com/info-hub/documents?c=document-generator (last accessed June 30, 2014).

[91] Start-Up Tool Kit, Orrick LLP, http://www.orrick.com/Practices/Emerging-Companies/Pages/Startup-Tool-Kit.aspx (last visited June 29, 2014).

[92] For a complete list of AmLaw 200 apps, see Rosenbaum, supra n.2.

[93] See id.

[94] See e.g. Kimbro, supra n.8, at 167 (noting that “perceived lack of return on investment” may be what holds many lawyers back from investing in branded networks and other lead generation services).

[95] Such is the case with iOS apps as Apple does not reveal a list of who downloaded apps to third-party developers. See Privacy Policy, Apple, http://www.apple.com/legal/privacy/en-ww/ (last visited June 25, 2014).

[96] There seems to be a growing number of businesses specializing in serving law firms with these tools. See e.g., Business Integrity, http://www.business-integrity.com/ (last accessed June 30, 2014); Wizdocs, http://www.wizdocs.net/2012/ (last accessed June 30, 2014).

[97] Lanctot, supra n.53, at 849.

[98] See supra Section II.B (Legal Advice v. Legal Information).

[99] Kimbro, supra n.8, at 173.

[100] Judith L. Maute, Facing 21st Century Realities, 32 Miss. C. L. Rev. 345, 374 (2013).

[101] Rosenbaum, supra n.2. Though not all of these apps are produced for the general public, 62% offer legal resources. Id.

[102] U.S. Digital Consumer Report, Nielsen (Feb. 2014), available at http://www.nielsen.com/us/en/reports/2014/the-us-digital-consumer-report.html (34 hours per month using the mobile internet on smartphones compared to 27 hours on the PC internet).

[103] See e.g., Carolyn Elefant, Online Matchmakers Help Small Biz Clients Find Lawyers — But Do They Help Small Law Firms?, Above the Law, Dec. 2, 2013, http://abovethelaw.com/2013/12/online-matchmakers-help-small-biz-clients-find-lawyers-but-do-they-help-small-law-firms/ (last accessed June 25, 2014).