I attended the American Bar Association’s annual meeting in Toronto last week. The global economy looked as if it was about to crash, but it was too late to incorporate that into the programme. The organisers did manage to include the previous US crisis into the opening ceremony, since the president and the principal speaker both made heavy references to the bickering between Democrats and Republicans over the settling of the US debt ceiling.

They called for civility and the ability to realise that you might be wrong even in your most dearly held beliefs. (For those not able to be there, please click on Louise Pitre to have an idea of the musical programme.)

I followed some of the activities of the ABA’s commission on ethics 20/20, which continues to be a leader in examining issues which will affect us all soon – on which more below. For those interested in the alternative business structure debate in the UK, it looks as if the commission will solicit comment on a template akin to legal disciplinary partnerships in the US. In other words, partnerships that are devoted to the delivery of legal services will be able to include non-lawyers as partners.

Lawyers will have to remain in overall control of the business, though. If the commission ultimately decides to recommend in this way, it would still have to be approved by the ABA House of Delegates. The final outcome is by no means certain.

The commission held a public hearing. Just before the president of the Law Society spoke about ABSs in England and Wales, there was a presentation from the ABA Standing Committee on Lawyer Referral and Information Service (LRIS). Commissioners confessed afterwards that they felt just how you might be feeling now – this subject does not keep them awake at night.

But it seems that, after hearing the evidence, they took the topic more seriously. That is because the presentation was a fascinating exposé of how Google and other search engines have changed the structure of lawyer referrals, with implications for bars and ethics. The slides and text submitted are worth reading.

Essentially, there are two different ways that a lawyer can appear in a search engine: ‘pay-per-click’ and ‘pay-per-lead’. ‘Pay-per-click’ is what we normally understand by lawyer advertising on a search engine, and operates no differently to yellow pages. A consumer enters a search term into a search engine and is provided both with ads based upon that term and the specific information sought. Such pay-per-click ads are clearly labelled as advertisements, and are not part of the organic search results.

‘Pay-per-lead’, on the other hand, functions differently. On-line companies promise the consumer that they will provide a specific service, namely the delivery of a specially selected lawyer’s contact information based on the consumer’s specific legal problem. These services frequently mention the screening of their lawyers as the reason consumers should use their services, using words such as 'verified', 'qualified', or 'legal specialists'.

However, these services do nothing more than simply recommend lawyers willing to pay the for-profit company’s fee. For some services, they sell a given postal code to a lawyer without ever informing the consumer that the purported 'recommendation' they are providing is based solely on a single lawyer or group of lawyers having been willing to pay for the right to referrals from that postal code. Oh dear.

LRIS believes that this behaviour may be against the referral provisions of the ABA’s model rules of professional conduct. Different states interpret ‘pay-per-lead’ differently for the time being, and LRIS wants the commission to clarify the matter. For instance, Arizona, Washington, Kentucky, and New York have found that such websites act as prohibited for-profit referral services when they purport to evaluate the needs of the consumer to match the consumer to the lawyer, or vouch for the qualifications of the participating lawyers.

Texas and Ohio, on the other hand, found such websites to provide permissible advertising rather than acting as impermissible referral services, but with the caveat that sufficient information must be presented to the consumer, and the websites must make no assertions about the qualifications of the participating lawyers.

For solicitors, this seems to me covered by chapter 9 of the SRA’s new handbook, coming into operation on 6 October. The code of conduct is now principle-based and outcome-focused, and so no detail is given as to whether ‘pay-per-lead’ would specifically be allowed or forbidden. But Indicative behaviour (or IB) (9.9) indicates non-compliance if 'accepting referrals where you have reason to believe that clients have been pressurised or misled into instructing you'.

Roll on the future - or maybe not, if this is what the future looks like?

Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies