April 11, 1994
A lawyer may not send a letter to physicians seeking to have the physicians refer to the lawyer patients with whom the lawyer has had no prior professional relationship.
References: MRPC 5.3, 7.3, 8.4(a).
A lawyer proposes to mail a letter to doctors advising that the lawyer's practice involves recovery of insurance medical payments and that the lawyer could be of service to the doctor's patients in this regard. The letter is written on the lawyer's letterhead, which includes the lawyer's address and telephone number. The text of the letter also includes the lawyer's telephone number, as well as an 800 telephone number. The proposed letter states in part:
"Are your patients sick and tired of fighting insurance companies for the payment of medical bills? Are your patients sick and tired of not receiving the medical benefits they are entitled to?
"We have the answers for the above problems. Our office fights to ensure that even those patients injured in an automobile accident, slip and fall, etc., receive the medical benefits they are entitled to. (Did you know that most premises lliability insurance policies have a no fault medical benefit reimbursement of up to five thousand dollars?)
"Our office files First-Party/PIP lawsuits. Our office instructs clients how to recover medical benefits for most slip and fall injuries.
"If you have a patient in an automobile, construction, slip and fall, etc., accident, and they are presently without legal representation, have the patient call our office today for free legal advice, without any obligation, for information on medical benefits . . . .
"We can assist your patients in obtaining available medical insurance coverage to help cover their medical bills.
"I will call you next week to discuss this with you. In the meantime, if your have any questions, do not hesitate to call us."
The lawyer's letter seeks to have medical providers make referrals to the lawyer's law practice. MRPC 7.3 states:
"(a) A lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyers doing so is the lawyers pecuniary gain. The term solicit includes contact in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circulares distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful, nor does the term solicit include sending truthful and nondeceptive letters to potential clients known to face particular legal problems as elucidated in Shapero v Kentucky Bar Ass'n, 486 US 466; 108 S Ct 1916; 100 L Ed 2d 475 (1988).
"(b) A lawyer shall not solicit professional employment from a prospective client by written or recorded communication or by in-person or telephone contact even when not otherwise prohibited by paragraph (a), if:
"(1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or
"(2) the solicitation involves coercion, duress or harassment."
A lawyer may not do through an agent what the lawyer cannot do directly. By soliciting referrals from the physicians, the lawyer is asking the physicians to "contact" on the lawyer's behalf patients with whom the lawyer has no prior professional relationship, and to suggest the patients seek legal services from the lawyer. In some, if not most cases, the "contact" by the physician will be in-person, i.e., during the course of a patient's visit to the physician for treatment. Since the lawyer could not solicit the patients in-person, the physicians may not do so on the lawyer's behalf. MRPC 5.3, 8.4(a).
The letter as proposed is not proper.