Jan. 6, 2020 – For several years, Google has offered Local Services Ads (LSAs) for a variety of home services, such as plumbers, electricians and painters.
In late July 2020, Google released its LSAs to lawyers in several practice areas such as bankruptcy, business law, contract law, criminal law, estate planning, family law, personal injury and real estate. Over the past few months, Wisconsin lawyers have been encouraged by marketers to participate in LSAs.1
To participate in the LSAs, lawyers must “authorize Google, its affiliates, and their agents to access, monitor, and record telephone calls, text messages, live chat, and other communications” initiated through the LSAs.
Consequently, lawyers have raised the question on whether a lawyer’s participation in the LSA is consistent with the lawyer’s duty of confidentiality.
What are Local Services Ads for lawyers?
LSAs for lawyers are sponsored service placement ads that are priced as pay-per-leads.2 That is, the lawyer sponsoring the LSA placement ad pays only when the lawyer receives a phone or text contact.
These LSA placements appear as a strip of two or three tiles at the top of the Google search results page, even above the pay-per-click ad placements.3
Each of the tiles feature a photograph of the lawyer, a star rating, how many years the lawyer has been in business, and business hours. The placement ad also includes a phone number or call button.
However, LSAs are unlike the typical pay-per-click ads on Google in two important ways. First, LSAs do not link directly to the website of the lawyer. Instead, the LSAs link to a detailed profile page on Google.
Second, and more importantly, the phone number is not the lawyer’s phone number: it is a number assigned to the lawyer by Google. This permits Google and its agents to access, monitor and record the phone calls and text messages placed from the LSA.
“The Local Services Additional Terms for Providers”4 authorizes Google to disclose information to third parties, and to access, monitor and record phone calls and text messages. Paragraphs 3 and 4 of the terms state:
3. Disclosure to Third Parties. Google may disclose to customers or other third parties information relating to your Use of the Local Services platform (for example, how often and how soon you respond to customer messages, the number of repeat customers you have, the average duration of your Service, number of Services performed, and feedback ratings and reviews, both positive and negative, on your performance). This information may also be made available on third-party websites.
4. Access to Data in the Service. You authorize Google, its affiliates, and their agents to access, monitor, and record telephone calls, text messages, live chat, and other communications initiated through the Programs (e.g., click-to-call ads). You also will obtain the necessary permissions required under local law and will notify your Team that these communications may be recorded and will obtain their consent to the recordings. Google may use information collected under this paragraph in compliance with its Privacy Policy.
Google provided the following information about confidentiality concerns through SearchKings,5 a company which provides Google ads management and Google remarketing among other services.
“We have received similar feedback from some other providers and our legal team reviewed their concerns and shared the following message:
We appreciate the concern and think you should use your best judgment on whether you choose to join our service knowing that the calls are recorded. All our legal advertisers are informed that each lead is coming from Google (and therefore recorded) with a whisper that says ‘Call from Google. This call is recorded and may not be attorney-client privileged.’ As a reminder, all our advertisers consent to call recording in our Local Services Terms. All potential clients are warned that the caller hears the whisper ‘This call is recorded and may not be attorney-client privileged’6 and can elect to proceed with the call or hang up. Our call recordings are only kept 60 days before being erased. In addition to this - all call recordings follow Google's Privacy policies which means, among other things, all call recordings are fully encrypted both in transit and in storage."7
Similarly, another marketing consultant in an email to a Wisconsin lawyer provided the following information about how callers are informed.
Calls to the firm’s assigned Google call forwarding number will trigger two ‘whisper messages.’ These are recorded messages that will be played before calls are connected: Caller will hear: ‘Google and its partners may record or return all calls for quality and research purposes, subject to our privacy policies. This call is not confidential.’ Recipient (law firm) will hear: ‘Call from Google. This call is recorded and may not be attorney-client privileged.’”8
Whether the lawyer may ethically agree to these terms depends on the duties owed to a person contacting the lawyer through the LSAs.
Those duties are determined by whether that person is classified as a “prospective client” within the meaning of Wisconsin Supreme Court Rule 20:1.18. A person who is not a prospective client receives neither the protection afforded clients nor the protection of SCR 20:1.18. Consequently, whether the lawyer participating in the LSA owes an ethical duty of confidentiality to the person providing information by telephone or text is determined by whether that person is classified as a “prospective client.”
Is the person contacting the lawyer through the LSA a prospective client?
SCR 20:1.18(a) defines prospective client as a “person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter.”
ABA Comment [2], which follows the Rule, provides crucial guidance: “Whether communications, including written, oral, or electronic communications, constitute a consultation depends on the circumstances.” Comment [2] provides contrasting examples.
For example, a consultation is likely to have occurred if a lawyer, either in person or through the lawyer's advertising in any medium, 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. See also Comment [4]. In contrast, a consultation does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer's education, experience, areas of practice, and contact information, or provides legal information of general interest. Such a person communicates information unilaterally to a lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, and is thus not a "prospective client.”
Most ethics opinions agree that the duties a lawyer owes prospective clients are not triggered by an unsolicited e-mail communication that “the lawyer receives out of the blue from a stranger in search of counsel, as long as the lawyer did not do or publish anything that would lead reasonable people to believe that they could share private information with the lawyer without first meeting [the lawyer] and establishing a lawyer-client relationship.”9
However, ABA Formal Opinion 10-457 acknowledges that “it may be difficult to predict when the overall message of a given website communicates a willingness by a lawyer to discuss a particular prospective client-lawyer relationship.”10
Wisconsin Formal Ethics Opinion EF-11-0311 provides additional guidance regarding contacts in response to lawyer advertising.
By using the term ‘unilaterally’ in conjunction with the lack of a reasonable expectation, ABA Comment [2] cautions that a lawyer should not do anything that would lead a person to reasonably believe that he or she could share information and that confidentiality would be respected. When a person contacts a lawyer in response to the lawyer’s advertising, such as through a website which provides the lawyer’s e-mail address and encourages people to contact the lawyer, the person’s contact is not necessarily unsolicited, and the communication is no longer unilateral.
Consequently, the opinion concludes that the website should contain warnings or disclaimers to protect the reasonable expectations of the untrained layperson.
To avoid creating ethical duties to the person, a lawyer who places advertisements or solicits e-mail communications must take care that these advertisements or solicitations are not interpreted as the lawyer's agreement that the lawyer-client relationship is created solely by virtue of the person's response and that the person’s response is confidential. ‘Imprecision in a website message and failure to include a clarifying disclaimer may result in a website visitor reasonably viewing the website communication itself as the first step in the discussion.’ [Quoting ABA Formal Opinion 10-457.] Consequently, lawyers should pay close attention to the warnings or disclaimer on their websites.
The disclaimer must have two separate and clear warnings: the disclaimer must make it clear that there is no lawyer-client relationship and that the e-mail communications are not confidential. The language of the disclaimer should be short and easily understood by a lay person. The longer the disclaimer is, the more confusing it could be, and the less likely it is to be read.12
Similarly Massachusetts Bar Association Opinion 07-0113 concludes that a lawyer who receives unsolicited information from person through an e-mail link on law firm website without an effective disclaimer must hold information confidential because the law firm has the opportunity to set conditions on the flow of information.
Even though the LSA is not the lawyer’s own website, the lawyer has an obligation under SCR 20:5.3, when using services outside the firm, such as marketing services, to make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer's professional obligations.
The LSA’s failure to include a clarifying disclaimer may result in the person viewing the LSA as the first step in the consultation about forming a client-lawyer relationship. It is true that the “whisper message” advises the caller that Google may record the conversation for quality and research purposes, and that the call is not confidential.14
However, this message, which mimics the message of typical customer service calls, is not an adequate disclaimer. From the perspective of a layperson, not a lawyer, the message does not make it clear that there is no lawyer-client relationship.
Moreover, the LSA does not link to the lawyer’s website, but instead to a Google profile. There are no disclaimers or warnings on the profile page.
There are, however, two possible places on the profile page which link to various Google terms.15 The first place is a small gray information button that follows the word “Sponsored.” That button opens a text box16 containing a brief explanation about LSAs and a link to the “Local Services Terms of Service”17 for the users.
The second place, at the very end of the profile page, following the information about the lawyer and the reviews, is a link to “Terms.” These are the general “Terms of Service”18 for the users of all Google services and not the specific terms of service for LSAs. In other words, any person seeking representation who uses Google LSAs, either by placing a call using the call button or by linking from the LSA tile to the lawyer’s Google profile, agrees to these terms.
Next to the “Terms” link is a “Privacy”19 link. Neither of these links provide an adequate disclaimer.20 Courts have refused to uphold disclaimers or licensing agreements that appeared on separate pages and did not carry an immediately visible notice of the existence of the terms or require unambiguous manifestation of assent to those terms.21
None of these methods of conveying all of the terms for Google users meet the disclaimer requirements. There is no immediately visible notice of a disclaimer which contains the two separate and clear warnings.
Moreover, because the LSA itself does not link to the lawyer’s own phone number or website, the lawyer has ceded the responsibility and the opportunity to tailor an outgoing phone message or a disclaimer that would provide adequate warning to avoid classifying the person as a prospective client.
Need Ethics Advice?
As a State Bar member, you have access to informal guidance and help in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys.
Ethics Hotline: To informally discuss an ethics question, contact State Bar ethics counselors Timothy Pierce or Aviva Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m to 4 p.m.
The Lawyer’s Duty of Confidentiality
When a lawyer agrees to participate in the LSA, the lawyer authorizes Google to access, monitor and record telephone calls, text messages, live chat, and other communications initiated through the LSA. In other words, the lawyer is agreeing to disclose information relating to the representation of a prospective client.
The lawyer owes a duty of confidentiality to a prospective client under SCR 20:1.18(b), which states: “Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information learned in the consultation, except as SCR 20:1.9 would permit with respect to information of a former client.”
SCR 20:1.9(c)(2) prohibits a lawyer from revealing information except as the rules would permit or require with respect to a current client under SCR 20:1.6. As a result, the same duty of confidentiality is owed to a prospective client, a former client and a current client.
SCR 20:1.6 prohibits a lawyer from revealing all information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure falls within one of the specific exceptions. Moreover, the duty of confidentiality protects client identity.22
A lawyer who participates in the LSA program discloses information related to the representation of a prospective client by authorizing Google to access, monitor and record phone calls and text messages. The lawyer also authorizes Google to disclose information to third parties. These disclosures are not impliedly authorized to carry out the representation as permitted by SCR 20:1.6(a), and they do not come within any of the specific exceptions in SCR 20:1.6(b) and (c).
Consequently, unless the prospective clients give informed consent, the lawyer violates the duty of confidentiality by authorizing Google to access, monitor and record phone calls and text messages, and by authorizing Google to disclose information to third parties. Informed consent, as defined in SCR 20:1.0(f), “denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”
The “whisper message” does not communicate adequate information and explanation about the material risks of authorizing Google to access, monitor and record phone calls and text messages. Nor does the “whisper message” communicate adequate information and explanation about the material risks of authorizing Google to disclose information about the caller to third parties.
The “whisper message” only states: “Google and its partners may record or return all calls for quality and research purposes, subject to our privacy policies. This call is not confidential.” This information is insufficient to comply with the requirements of SCR 20:1.0(f).
Moreover, while a user acknowledges and agrees that Google and its partners may monitor and/or record any telephone calls or live chat messages,23 that acknowledgement and agreement for contract purposes does not satisfy the informed consent required by the disciplinary rules. A marketing consultant provided the following advice in an email to a Wisconsin lawyer:
Many attorneys currently participating in LSAs have said they've informed their intake staff to listen for the recorded message, and if they hear it, meaning it's from their LSA, they ask a few basic questions to verify the caller's actually looking for a [insert type of] lawyer, then take down their contact info and let them know they'll call back immediately so they can have a private conversation.
While following this advice may minimize the amount of information disclosed, client identity and other information is disclosed and recorded without the client’s informed consent in violation of SCR 20:1.6.
Moreover, if the lawyer or the lawyer’s staff does not answer the phone call and the caller leaves a detailed message, even more information is disclosed.
Even though the lawyer agrees, pursuant to paragraph 4 of the Terms for Providers, to obtain the necessary permissions required under local law, the lawyer has no ability under the current structure to provide the appropriate warnings or disclaimer, or to obtain the required informed consent from the prospective client as required by the Rules of Professional Conduct.
The initial communication by phone is through a phone number provided and controlled by Google, not through the phone number owned by the lawyer. Even though the phone number is provided and controlled by Google, the lawyer has an obligation under SCR 20:5.3, when using such services outside the firm, to make reasonable efforts to ensure that the services are provided in a manner that is compatible with the lawyer's professional obligations.
Conclusion
To participate in the LSAs, lawyers must authorize Google to access, monitor and record phone calls and text messages initiated through the LSAs.
The lawyer must also authorize Google to disclose information relating to the lawyer’s use of the LSA to third parties. Whether a lawyer’s participation in the LSA is consistent with the lawyer’s duty of confidentiality depends whether the person contacting the lawyer through the LSA is a prospective client.
A prospective client is a “person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter.”
To avoid creating a prospective client relationship, a lawyer who places advertisements must be careful that these advertisements are not interpreted as the lawyer's agreement that that the prospective lawyer-client relationship is created solely by virtue of the person's response. An adequate disclaimer avoids such an interpretation.
The LSA does not include an adequate disclaimer: the message does not, from the perspective of a layperson – not a lawyer – make it clear that there is no prospective lawyer-client relationship. Moreover, the lawyer has no ability under the current LSA structure to provide an adequate disclaimer.
The lawyer authorizes Google to access, monitor and record the phone calls and text messages, and to disclose information to third parties; and this authorization permits the disclosure of information protected by the duty of confidentiality.
This disclosure of information is not impliedly authorized to carry out the representation as permitted by SCR 20:1.6(a), and does not come within any of the specific exceptions in SCR 20:1.6(b) and (c). The lawyer has not obtained the prospective client’s informed consent to the disclosure as required by SCR 20:1.6(a), and has no ability under the current LSA structure to obtain to do so.
Moreover, while lawyers may employ nonlawyer assistants outside the firm for advertising and marketing services, the lawyer has an obligation under SCR 20:5.3 to make reasonable efforts to ensure that those services are provided in a way that is compatible with the lawyer’s duty of confidentiality.
Endnotes
1 See, e.g. https://www.marketmymarket.com/google-screen-local-service-ads-expands-into-more-practice-areas-and-cities/; https://onward.justia.com/2020/07/30/google-has-opened-up-local-services-ads-to-lawyers-nationwide/; https://www.paperstreet.com/blog/local-service-ads-google-law-firm-marketing/.
2 See https://ads.google.com/local-services-ads/?subid=us-en-et-g-gls-a-glshc_menuredirect!o2.
3 The LSAs will look slightly different on mobile phones than they do on laptops.
4 https://www.google.com/ads/localservices/TC-US-2017-08.html
5 https://searchkings.com/
6 I called one of the numbers on December 17, 2020, to listen to the “whisper message.” It stated that the call was not confidential. It did not state that the call “may not be attorney-client privileged.”
7 Email dated December 10, 2020 from Darryl Margaux, President & Co-Founder of SearchKings to Aviva Meridian Kaiser.
8 A whisper message is a short recorded message that plays to a person placing the call or to a person receiving the call before call is connected. The only person who hears the whisper message is the person for whom the message is intended. For example, the caller will hear the message intended for the caller, but the receiver will not hear that whisper message. The receiver will hear the whisper message intended for the receiver, but the caller will not hear that message.
9 Wisconsin Formal Ethics Opinion EF-11-03: Who is a Prospective Client; Lawyer Websites and Unilateral or Unsolicited E-mail Communications (2011) at 4.
10 ABA Formal Opinion 10-457 at 3.
11 Wisconsin Formal Ethics Opinion EF-11-03: Who is a Prospective Client; Lawyer Websites and Unilateral or Unsolicited E-mail Communications (2011).
12 Id.
13 http://www.massbar.org/publications/ethicsopinions/2000-2009/2007/opinion-07-01.
14 For example, I searched on Google for “criminal lawyers” using my cell phone. At the very top of the search results page were two tiles. Each tile featured a photograph of the lawyer, a star rating, how many years the lawyer has been in business, business hours, and a call button. There is no phone number or indication on the tiles to indicate that the call is to a phone number owned by Google and not to the lawyer’s own phone number. Using the call button, I placed a call. I did receive an outgoing message stating that Google and its partners may record the call and that the call is not confidential.
15 Some of the profile pages had the one but not the other. It seems to depend on the type of device used to access the LSA and whether the lawyer is “Google Screened.”
16 The text box provides the following message: “These results show select businesses that serve your area. These businesses pay Google to appear in these results. Those with the "Google Screened" badge are screened. Terms & policiesIf you click to call an Advertiser via Local Services, the call is routed through Google.Learn more about call data Those without the badge are less extensively screened. Learn more ”
17 https://support.google.com/localservices/answer/7334165?visit_id=637443760707154042-2557245291&rd=1 The very first term states: Please note that a provider may impose or ask you to consent to additional terms relating to their provision of services to you, and you acknowledge that different terms of use, service terms, or other contractual provisions may apply to your receipt of services.
18 https://www.gstatic.com/policies/terms/pdf/20200331/ba461e2f/google_terms_of_service_en.pdf The PDF of the Terms of Service covers 16 pages.
19 https://www.gstatic.com/policies/privacy/pdf/20200930/r9u74aii/google_privacy_policy_en_us.pdf The PDF of the Privacy Policy covers 31 pages.
20 When accessed from a mobile phone, the “Terms” and “Privacy” links appear at the end of the profile page, but when accessed from a laptop, the links did not appear at the end of the profile page.
21 See, e.g., Sprecht v. Netscape Communications Corp., 306 F.3d 17, 31-32 (2d Cir. 2002).
22 Wisconsin Formal Ethics Opinion EF-17-02: Duty of Confidentiality; Identities of Current and Former Clients.
23 Paragraph 6 of the “Local Services Terms of Service” states in part: “You acknowledge and agree that Google and its partners may monitor and/or record any telephone calls or live chat messages between you and the provider made through Local Services.” https://support.google.com/localservices/answer/7334165?visit_id=637443517765438096-360560590&rd=1
