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Ethics Opinion

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RI-340

June 8, 2007

SYLLABUS

    A lawyer may be listed in a website of a law firm with whom he is not otherwise affiliated as a local lawyer to whom that firm would refer cases, without violating rules pertaining to participation in lawyer referral services, provided that the website discloses that the information provided is solely for the purpose of soliciting clients for the firm and its referral counsel.

    References: MRPC 7.2(c)(ii), 6.3(b), 6.3(c)

TEXT

A lawyer has inquired whether he may accept the invitation of an out-of-state law firm to be listed in its website, maintained to further the firm's plan to create a comprehensive marketing campaign to develop personal injury case leads on a national basis, as its Michigan attorney. No fee is charged for the website listing, and the Michigan lawyer would have the right to approve the content of the website. Sample material from the website indicates that the law firm is soliciting clients for itself by offering a national network of experienced trial lawyers locally available to the client. Calls from prospective clients would be received by the firm, which would then review the case with the local lawyer. A Michigan case would be referred to the Michigan attorney after he and the firm agreed to a fee sharing arrangement. The question posed to the Committee is whether the arrangement would violate the Michigan Rules of Professional Conduct ("MRPC") as they apply to participation in a lawyer referral service.[1]

The Michigan Rules address the subject of participation in a lawyer referral service twice – once in MRPC 6.3, which establishes requirements of a lawyer referral service in which a lawyer may participate, and again in the context of lawyer payment for referrals, in MRPC 7.2. Rule 7.2(c)(ii) of the Michigan Rules[2] provides:

    (c) A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may:

      (ii) participate in, and pay the usual charges of, a not-for-profit lawyer referral service or other legal service organization that satisfies the requirements of Rule 6.3(b) . . . .

The subject of lawyer referral service is addressed only in Rule 7.2(b)(2) of the Model Rules of Professional Conduct[3] on lawyer advertising. The Model Rule and most state rules apply only to the matter of payment of charges for advertising or referral, not to participation in a program. Under the counterpart Model Rule, a lawyer would be able to participate in a lawyer referral service that is for profit if the lawyer does not pay a fee for the privilege of participating.[4] Unlike the Model Rule, however, MRPC 7.2(c)(ii) has an additional restriction. The lawyer's right to "participate" in the referral service is conditioned on the service's meeting the requirements of MRPC 6.3(b). Whether the referral arrangement meets the requirements of MRPC 6.3(b) must be considered if either MRPC 7.2 or MRPC 6.3(b) is to be read as containing an implicit prohibition that a lawyer may not participate in lawyer referral service that does not meet the requirements of Rule 6.3(b).

MRPC 6.3(b) appears to present an adaptation of Model Supreme Court Rules Governing Lawyer Referral and Information Services ("LRIS Rules"), adopted by the American Bar Association in 1993,[5] which were created to establish guidelines for qualifications of lawyer referral services. Although comments accompanied the LRIS Rules as drafted by the ABA's Standing Committee on Lawyer Referral and Information Services, there are no comments to the Michigan Rule for interpretive guidance.

Rule 6.3(b) begins with substantively the same terminology as Rule 7.2(c)(ii):

    (b) A lawyer may participate in and pay the usual charges of a not-for-profit lawyer referral service that recommends legal services to the public . . . .

but continues by conditioning that permission with the requirement that the service meet standards of qualification as a lawyer referral service set out in five subsections that follow. An exhaustive discussion of these standards is unnecessary because it is clear that the proposed marketing arrangement does not meet any of them.

We are not aware of any rule that prohibits a lawyer's participating in a lawyer referral service that did not meet the standards for qualification expressed in MRPC 6.3(b), other than Rule 7.2(c)(ii). Clearly, the lawyer could not pay charges to belong to such a referral service, or give anything of value, for participation in such a service. In interpreting the MRPC, we are reluctant to imply rules that are unstated, even though the purpose of a "permissive" rule, such as 6.3(b), becomes illusory as a result. Standing alone, Rule 6.3(b) contains no prohibitions, only a limited permission. MRPC 7.2(c) begins with a prohibition against giving something of value for a recommendation for services, followed by exceptions. Merely because the exception states that a lawyer may participate in a not-for-profit referral service does not require us to conclude that participation in a for profit referral arrangement, or a referral service that did not meet the standards of MRPC 6.3(b), in and of itself would violate a prohibition against "giving something of value" for a recommendation.

The Comment to MRPC 7.2 recognizes that a lawyer is allowed to pay for advertising otherwise permitted by the rules, and to divide fees as permitted under Rule 1.5(e). Even if we were to conclude that MRPC 6.3(b) had an independent and implied prohibition on the conduct in question here, MRPC 6.3(c) provides that the requirements of (b) do not apply to "lawyers jointly advertising their services in a manner that discloses that such advertising is solely to solicit clients for themselves."[6] We believe that this rule expressly permits the arrangement described in the inquiry.

The Michigan Rules do not provide a definition of a lawyer referral service. Rule 6.3(c) itself, in declaring when the requirements of subrule (b) do not apply, obfuscates the meaning by including individual lawyer to lawyer referrals and lawyer joint advertising along with prepaid legal plans and pro bono legal assistance programs. The implication is that any information about a lawyer from a person other than the lawyer himself is a lawyer referral service. The MRPC, as do the Model Rules, seeks to prevent abuse that can arise when a subjective referral is made to appear as objective and public spirited. For this reason, Rule 6.3(b) seeks to identify the characteristics of a public service operating in the public interest.

We do not believe that the marketing program described properly can be considered a lawyer referral service at all. It is overtly marketing, and promotes services by a defined group of lawyers associated with the sponsoring law firm. Participation in it is not properly the subject of MRPC 6.3(b) or 7.2(c)(ii), either expressly or impliedly.


[1] The inquiry from the lawyer recognizes the applicability of MRPC 7.1, relating to the content of lawyer advertising, and MRPC 1.5(e), relating to division of fees between lawyers not in the same firm. In addition to these concerns and the ones raised by the inquiry, the proposed arrangement implicates other Rules. The website may not imply that the Michigan lawyer practices in partnership or other organization with the sponsoring firm. MRPC 7.5(d). The information received when a prospective client calls the website contact is confidential, and subject to MRPC 1.6. Although the client may believe it has called the Michigan lawyer, in fact it is speaking with the sponsoring firm. The proposed agreement between the Michigan lawyer and the sponsoring firm disavows any partnership or other relationship. What disclosures must be made to the prospective client regarding the arrangement is beyond the scope of this opinion.

[2] The Michigan Rule appearing at 7.2(c)(ii) is the counterpart of Model Rule 7.2(b)(2), but with the significant difference that the Michigan rule purports to regulate participation of the lawyer in a referral service.

[3] American Bar Association, 2006. The Model Rule does not purport to address the lawyer's right to participate in a lawyer referral service, but permits the lawyer to "pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service."

[4] ABA Informal Opinion 85-1510 (March 26, 1985). See also Colorado State Bar Ethics Op. 106 (June 6, 1999) applying a similar rule.

[5] These Rules may be found at http://www.abanet.org/legalservices/lris/modelrules.html. Except to the extent adapted as a part of MRPC 6.3(b), these Rules have not been adopted in Michigan. These Rules do not regulate or differentiate based on whether a lawyer referral service is for profit or not for profit, but focus on whether the service is "qualified".

[6] MRPC 6.3(c)(3).

 
     

 

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