Effective January 27, 2025, the Federal Communications Commission (FCC) will have closed a loophole that allowed certain telemarketers and marketing entities to swamp a consumer with numerous automated calls and texts.
The loophole is described in FCC document FCC-23-107.
Such marketers, including lead generators, maintain a platform for consumers to shop for or get information on various products and services. Perhaps unbeknownst to the consumer, the advertiser or lead generator represents numerous sellers or providers. When the consumer authorized the platform to send automated and other types of calls, the consumer would authorize all of the sellers or providers represented by the service – including those unknown to the consumer.
As you will read below, the new FCC rules outlaw the prior practices of consent and “robocalls.” In the place of these marketing ploys is a mandate that each provider or seller get written permission from the consumer to receive calls or texts. The FCC rules represent only part of the regulatory and ethical framework that impacts how personal injury lawyers market their skills and services to injured people.
An Overview of Lead Generation in the Legal Profession:
To see how the new FCC regulations may affect attorneys and their lead generators, it may help to understand how lead generators operate in the legal profession.
Personal injury and other law firms have turned to the digital world for marketing. According to a survey from the American Bar Association for 2023:
- Over 80 percent of responding firms maintained some presence online
- 83 percent used LinkedIn, followed by 57 percent being present on Facebook
- Nearly two out of every five respondents relied on Avvo for marketing and exposure
Avvo has served as one of several “lead generation” platforms for lawyers. Others include Clio, LegalMatch, Findlaw, Martindale-Hubble, Google, etc. All kinds of attorneys, including those who practice criminal, estates, Social Security Disability, bankruptcy, traffic, workers’ compensation, and personal injury.
Think of lead generators, such as those listed above, as “matchmakers” connecting personal injury victims or others in need of legal services with lawyers and law firms that provide them. Victims of motor vehicle negligence, slips and falls, dog bites, or defective products may reach a matchmaker or a law firm’s website directly by Google or similar searches. Some keyword examples which may attract potential clients of personal injury lawyers include:
- Car accident lawyer
- Best personal injury lawyer
- Best motorcycle accident lawyer
- Etc
Often, the searcher will include the city or county of residence, where the injury occurred, or where the client lives.
While keywords may take prospective clients directly to lawyer websites, the lead generator’s platform affords a more centralized place for searches for and inquiries to attorneys. A client who visits a lead generator will enter information about the cause of the personal injury, such as:
- Medical malpractice
- Motorcycle accident
- Car wreck
- Nursing home negligence or abuse
- Slip or fall at a retail store
Other questions posed to the client include the extent of injury, how soon the client needs an attorney, and the date of the incident. The client will likely see questions directed at how the incident occurred, whether the client needed hospitalization or missed work; and whether the at-fault party or the client was cited for a traffic violation.
With the information in hand, the matchmaker forwards or may select potential lawyers who may contact the would-be client. This comes often from an emailed notification to the lawyer about a prospective client’s interest in the lawyer’s services. This selection turns on information furnished by the participating lawyers about their practice areas and experience. Depending on the platform, lawyers get “ratings,” the ethics of which are discussed later on in this piece.
If you join a legal lead generator service, you may find advantages such as:
- Enhanced ability to prescreen prospective clients due to the information furnished by them to the platform
- Broader reach (geographic and otherwise) of your client base
- The ability to measure the effectiveness of your marketing plan by counting the number of “leads” or contacts generated
Many attorneys find lead generation more economical than mass media approaches such as television or radio advertisements.
The Problems with Robocalls:
The lead generation model prevails in numerous industries and trades, such as real estate, insurance, lending, healthcare, and travel.
These and other economic sectors also see numerous telemarketers engaged in “robocalling.” In this practice, a seller or telemarketer uses a prerecorded message rather than a live human being to sell or advertise. The Federal Communications Commission has long dealt with robocalls and otherwise unsolicited communications from telemarketers. The regulatory agency ranks telemarketing calls as the top ground for consumer complaints.
The tactics of unscrupulous ones go beyond annoying consumers who find their workdays, quiet times, dinner, chores, or naps interrupted. Robocallers can facilitate fraud. In February 2021, two individuals pleaded guilty in connection with robocalls in which the callers purported to call on behalf of several government agencies. The fraud artists had tricked and coerced victims into sending over six million dollars. In these and other cases, robocallers hide their true identities through spoofing.
The Law in General on Telemarketing Calls:
The Telephone Consumer Protection Act became law in 1991 to set boundaries for calls by marketers. In its present form, the law prohibits telemarketers from live phone calls to a consumer unless:
- The consumer has given express written permission for such a call or
- The consumer maintains an “established business relationship” with the marketer, which means either a purchase of a good or service within the last 18 months of the call or a consumer-generated inquiry within the last three months of the call
Once upon a time, the Act allowed robocalls where the recipient had an “established business relationship” with the party making the robocall. In 2012, the FCC eliminated that exception. Now, a telemarketer or seller cannot place a robocall without a consumer’s express written consent.
The Lead Generator Loophole is Closed.
The prior rules allowed a lead generator or a comparison shopping site to obtain a single consent for robocalls on behalf of numerous sellers or providers. For instance, by giving consent to the lead generator or platform controller, all of the insurance companies or travel agencies represented by the generator or platform could robocall. In many cases, consumers would get robocalls from sellers or telemarketers whose identities or existence were not revealed beforehand – or even during the robocall.
Effective January 27, 2025, this loophole is gone. Sellers who use lead generators or comparison shopping sites can no longer rely upon consent given to the generator or site. The new FCC rule requires that each seller or would-be robocaller have the express written consent of the consumer to send automated texts or calls.
The new standard requires consented robocalls to relate to the encounter that generated the consent in the first place. To help illustrate the “logically and topically associated” requirement, the FCC says that a company obtaining consent during an interaction about car loans would not be permitted to then robocall (without permission) about debt consolidation programs.
What this Means for Personal Injury Lawyers:
The new FCC rules place the onus upon the specific sellers or service providers as well as the lead generator to ensure compliance. The fact that a seller claims reliance upon the lead generator will not do as a sufficient answer to a consumer or other complaint. As such, those making robocalls must maintain with their records the names and phone numbers of those granting consents.
As a personal injury lawyer, review your agreements, terms of service, and procedures with the lead generator to determine if the generator identifies you in the consents from the clients. You may find it more prudent to not robocall or send auto texts to the prospective client. Instead, consider sending a letter and informing the person in the letter that you obtained their information and inquiry from a lead generator.
Robocalls and, for that matter, live phone calls to potential clients you discover through lead generators could constitute violations of ethical rules. Most jurisdictions prohibit, in some form and to some degree, solicitation with a prospective client who has not contacted you. Some states do not allow any such direct solicitation, whether in-person or by a call. In others, lawyers may not have live person-to-person solicitation. Generally, written communications do not violate ethical rules against “cold-contacting” potential personal injury victims.
Paying Third Parties for Recommendations:
Beyond the new FCC rules on robocalls, lawyers must observe professional ethics when using lead generators. The use of this marketing method creates potential ethical and disciplinary traps for lawyers who do not monitor the practices or policies of the generators.
As adopted by jurisdictions, Rule 7.2 of the Rules of Professional Conduct generally makes it unethical for a lawyer to pay someone for recommending the lawyer’s services.
Lead generation platforms may charge the lawyer to be listed on the platform, such as based on the number of leads. The fee by itself does not violate Rule 7.2. It becomes offensive if the lead generator has either expressly or through implied words or other actions recommended that the prospective client use the specific lawyer.
Avvo Legal Service’s referral program generated controversies about Rule 7.2. The New York State Bar Association determined that Avvo’s practice of rating lawyers who paid to be on the service violated Rule 7.2 because the rating implied a recommendation of lawyers on the part of Avvo. Attorneys on that site paid to be there. By contrast, platforms such as LegalZoom likely could advertise (so long as truthfully) that they evaluated their attorneys because the attorneys did not pay to be on the platform.