May 18, 1989
A lawyer may not ethically participate in a referral service where there is no review of advertisements by participating lawyers, or the participating lawyer pays an annual fee to a for-profit referral service.
References: MRPC 7.1, 7.2(c); RI-7, RI-9.
A corporation, organized for profit, and headed by a nonlawyer operates a lawyer referral service. Under the plan, lawyers pay a $250.00 annual registration fee to be listed in one particular legal field. Each additional listing in a separate legal field requires a $50.00 annual payment. The corporation advertises on television and through other media. There is no mechanism for the lawyer to control the content of the advertising. There is a representation that no specific lawyer or law firm will be mentioned in the advertisement. The essence of one of the television advertisements is as follows: a person holding a phone book open to the pages of lawyer ads looks bewildered and says "Your fingers could get awfully tired walking through this." Then the referral service name and phone number is given.
A potential client who contacts the referral service is screened for the type of legal problem. The caller is then given the names of three lawyers who have paid for listings in that particular legal specialty. The lawyers' names are given out on a rotational basis. There is no obligation for the lawyer to accept a particular case. There is no representation made as to the fees to be charged by a particular lawyer. The plan literature contains, among other provisions, the following:
"I (the Attorney) agree to remit to (Corporation) an additional $30 for each referral case I undertake . . . .
"That each participating attorney shall promptly report the result of the referral to [corporation] on forms furnished by [corporation]. Failure to do so may result in a halt of referrals offered to that attorney . . . .
"That a participating attorney who finds that a referred client needs to be referred to another attorney, for whatever reasons, will utilize the [corporation] Lawyer Referral Service for such referral."
A lawyer asks whether participation in the referral service is proper. MRPC 7.1 provides:
"A lawyer may, on the lawyer's own behalf, on behalf of a partner or associate, or on behalf of any other lawyer affiliated with the lawyer or the lawyer's law firm, use or participate in the use of any form of public communication that is not false, fraudulent, misleading or deceptive. A communication shall not:
"(a) contain a material misrepresentation of fact or law, or omit a fact necessary to make the statement considered as a whole not materially misleading;
"(b) be likely to create an unjustified expectation about results the lawyer can achieve, or state or imply that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or
"(c) compare the lawyers' services with other lawyers' services, unless the comparison can be factually substantiated."
As the plan is presently formulated, there is no review of advertisements by participating lawyers. In RI-7, this Committee said:
". . . the lawyer would permit the organization to be responsible for marketing without review by the lawyer. Although the lawyer could not be expected to review the entire marketing plan of the organization, a lawyer has a duty to assure that communications about the lawyer's services are not false, fraudulent, deceptive or misleading, do not contain a material misrepresentation of law or fact, are not likely to create an unjustified expectation, and are not improper solicitation." MRPC 7.1 and 7.3.
The plan violates ethics rules by not providing a mechanism for lawyer review of advertisements.
MRPC 7.2(c) provides:
"(c) A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may pay the reasonable cost of advertising or written communication permitted by this rule and may pay the usual charges of a not-for-profit lawyer referral service or other legal services organization."
The plan in question does not fall within the second exception to MRPC 7.2(c), to wit: the plan is a for profit referral service. A lawyer may not pay a fee to participate in a referral venture where the participating attorney's fee is allocated to an expense other than advertising. RI-9.
Therefore, participation in the service as constituted would be improper.