A lawyer may not participate in a trade exchange whose members offer their goods and services in exchange for goods or services to be provided by other participants.
References: MCPR DR 2-103(B), DR 2-103(C), DR 3-102(A); Supreme Court Admin Order 1978-4; ABA Op 38.
Members of a "trade exchange" advertise the availability of goods or services to be exchanged for goods or services provided by other members. The members customarily pay an initial entry fee, annual dues and a service charge for each transaction, based on its value. The trade exchange screens applicants for credit worthiness and provides a computer accounting system in which member accounts are recorded in dollar amounts, but with no cash transactions taking place. A lawyer asks about the propriety of joining the trade exchange.
The first aspect to consider is whether a lawyer may participate in the time-honored practice of swapping services for goods or other services in place of buying or selling for cash. The committee finds scant authority pro or con. ABA Op 38 acknowledged that a lawyer could properly accept and use an annual railroad pass given to the lawyer by a client as partial compensation for services. In the absence of any clear authority against trading of services per se, the committee looks to the specific characteristics of the arrangement in this inquiry.
One aspect of the trade exchange is its use, in effect, as an advertising medium. The trade exchange does in fact enable a lawyer to make the availability of the lawyer's services known to others who may wish to pay for them with something of value. Admin Order 1978-4 provides in part:
"A lawyer may on behalf of himself, partner or associate, or any other lawyer affiliated with him or his firm, use or participate in the use of any form of public communication that is not false, fraudulent, misleading or deceptive. Except for DR 2-103 and DR 2-104, disciplinary rules in conflict with this Order are suspended for a period of one (1) year."
Therefore, a lawyer may advertise legal services by any means to the extent that the publicized information is truthful.
Other pertinent aspects of the trade exchange are that it serves as a credit and referral system for its members, and members must pay an entry fee, annual dues and a service charge for each transaction. MCPR DR 2-103(B) states:
"A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client . . . except that he may pay the usual and reasonable fees or dues charged by any of the organizations listed in DR 2-103(D)."
The trade exchange does not fall within any of the exceptions indicated in MCPR DR 2-103(D). Payment by a lawyer of the trade exchange's annual dues and transaction charges would constitute giving something of value to promote the lawyer's business and recommend the lawyer's employment. Further, MCPR DR 3-102(A) prohibits a lawyer from sharing legal fees with a non-lawyer.
A lawyer's membership in a trade exchange would be more commercial than is permitted by ethics rules. Accordingly, a lawyer may not become a member of a trade exchange for the purpose of trading professional services for the goods and/or services of others.