Protecting Your Firm from Barratry, Capping, and Ethical Violations in the AI Era

Disclaimer: This checklist is for informational purposes only and does not constitute legal advice. Attorneys should always consult their specific State Bar rules regarding advertising and solicitation.

Part 1: The “Source & Origin” Test

How is the lead generated? This is the most common source of “Barratry” and “Capping” violations.

• [ ] Is the lead “Inbound” or “Outbound”?
  • Safe: The potential client clicked an ad or requested information (Inbound).
  • Dangerous: The vendor “cold-called” or texted the victim based on a police report or scraped data. In Texas, unsolicited contact regarding an accident is a felony (Barratry).
• [ ] Is the advertising “Transparent”?
  • Safe: The advertisement clearly identifies the source (e.g., “Sponsored by [Law Firm Name]” or a registered “Qualifying Provider”).
  • Dangerous: “Blind” ads that promise generic “Legal Help” without identifying a lawyer or provider often violate State Bar advertising rules.
• [ ] Does the vendor use “Cappers” or “Runners”?
  • Safe: Digital marketing and AI targeting.
  • Dangerous: Physical runners at hospitals, tow yards, or police stations. This is explicitly illegal in California (BPC § 6155) and Texas (Penal Code § 38.12).

Part 2: The “Financial Structure” Test

How you pay for leads determines if you are “Marketing” or “Fee-Splitting.”

• [ ] Flat Fee vs. Commission
  • Safe: You pay a flat “Marketing Retainer” or “Media Spend” for labor and advertising costs.
  • Dangerous: You pay a percentage of the settlement or a “bounty” per signed case. This can be interpreted as illegal Fee Splitting with a non-lawyer (Rule 5.4).
• [ ] Joint Advertising Model
  • Safe: The budget is designated for media buying and administrative intake support.
  • Dangerous: Paying for a “Referral.” California BPC § 6155 strictly regulates “Referral Services.” If the vendor is not certified by the State Bar, they cannot “refer” cases for a fee.

Part 3: The “Intake & Signing” Test (ABA Formal Opinion 506)

Who is actually signing the client? New ABA guidance clarifies the role of non-lawyers.

• [ ] Who explains the contract?
  • Safe: The intake team collects facts and conflict checks, but offers the client a chance to speak with the lawyer before or during signing.
  • Dangerous: The vendor “signs” the client on your behalf without the client ever knowing which firm they are hiring until later. This is the Unauthorized Practice of Law (UPL).
• [ ] Is the “Retainer” exclusive?
  • Safe: The lead is exclusively transferred to your firm.
  • Dangerous: The lead is sold to 5 different firms (“Shared Leads”), creating a “race to the phone” that risks violating TCPA (harassment) laws.

Part 4: State-Specific “Red Flag” Addendums

🚩 California Attorneys (The “BPC 6155” Rule)

• Referral Services: If a vendor refers clients to you, they must be certified by the State Bar of California. If they are not certified, you cannot accept the referral.
• The Fix: Use a “Joint Advertising” or “Marketing Agency” model where the vendor manages your ads, rather than a “Referral” model where they sell you their leads.

🚩 Florida Attorneys (The “Qualifying Provider” Rule)

• Rule 4-7.22: You may only accept leads from a “Qualifying Provider” (QP) that has filed with the Florida Bar.
• Reporting: The QP must disclose the location of participating lawyers and cannot state or imply they are a law firm.
• 30-Day Blackout: Targeted written communication to accident victims is prohibited within 30 days of the incident. Note: This applies heavily to direct mail/texting; broad web advertising is generally treated differently, but “identifying” a specific victim to target them directly violates this.

🚩 Texas Attorneys (The “Barratry” Danger)

• Penal Code § 38.12: It is a 3rd Degree Felony for a person to solicit employment for a lawyer with the intent to obtain an economic benefit.
• Safe Harbor: General advertising is allowed. Targeted, uninvited solicitation (calling a victim because you saw their accident report) is a crime. Strict Opt-In verification is required..

How Our Platform Keeps You Compliant

• Verified Opt-In: We use AI to identify high-intent users who voluntarily engage with firm-branded content.
• No Fee-Splitting: Our services are billed as “Marketing & Intake Support,” not commissions.
• ABA 506 Compliant: We vet and qualify, then transfer the lead to you (or prepare the file for your review) to ensure the attorney-client relationship is formed correctly.

Let’s discuss your specific needs and how our Compliance Program, AI Lead Generation Technology, digital marketing, signed cases, and verified leads can help you achieve your growth goals.

Contact Mohr Marketing today for a custom quote

www.mohrmktg.com 

Best Wishes,
Sue Mohr

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Article Name

The 2026 MVA Lead Generation Compliance Checklist

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Let’s discuss your specific needs and how our Compliance Program, AI Lead Generation Technology, digital marketing, signed cases, and verified leads can help you achieve your growth goals.

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Susan Mohr

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Mohr Marketing, LLC

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