March 6, 1995
A lawyer may agree to be placed on a list of lawyers distributed by a church to members of its congregation, which lawyers agree to offer special rates for will drafting for members of the congregation who desire to leave a bequest to the church, provided that:
- the church is knowledgeable concerning the lawyer's services;
- the lawyer exercises independent professional judgment in counseling clients regarding whether to leave a bequest to the church; and
- the lawyer gives nothing of value to the church in exchange for the listing.
References: MRPC 5.4(c), 6.3(b), 7.1, 7.2(c); RI-147, RI-163, RI-167, RI-223.
A lawyer wishes to participate in a program initiated by the lawyer's church which is designed to encourage parishioners to write a will and to leave a bequest to the church's endowment fund. The church proposes to provide parishioners with a list of attorneys who practice in the area of estate planning and who are also members of the church. The lawyer wishes to have the lawyer's name appear on the list and to have it noted that should a parishioner make a bequest to the church, the lawyer will waive any fee for the preparation of the will. The lawyer asks whether participation in the program would violate MRPC 6.3(b) and whether the waiver of fee prohibits a lawyer from representing the same client in a subsequent or related matter.
MRPC 6.3(b) states:
"(b) A lawyer may participate in and pay the usual charges of a not-for-profit lawyer referral service or a legal service organization that recommends, furnishes, or pays for legal services to its members or beneficiaries, if that service or organization:
"(1) has filed with the State Bar of Michigan a written plan disclosing the name under which it operates, the name, address, and telephone number of its chief operating officer, the plan terms, conditions of eligibility, schedule of benefits, subscription charges and agreements with counsel;
"(2) updates its filings within 30 days of any material change; and
"(3) in January of each year following its inception files a statement representing that it continues to do business under the terms and conditions reflected in its filings as amended to date."
The question is therefore whether the arrangement described amounts to the church performing as a "lawyer referral service" requiring registration under MRPC 6.3. In RI-223 the Committee discussed in the context of a proposed prepaid legal services plan whether identifying lawyers from whom constituents may obtain services constituted a lawyer referral service.
"In the course of administering the plan, the plan sponsor may choose to inform subscribers or potential subscribers of the identity of participating lawyer or firms; the participating lawyers or firms may choose to make presentations at seminars, workshops, or other gatherings to inform and educate subscribers or potential subscribers about the availability and need for legal services provided through the PLSP. Such activities are not 'referring clients to the lawyer', nor 'recommending the lawyer's services'. In and of themselves, they do not transform the [prepaid legal services plan] into a [lawyer referral service].
"If there is a recommendation of the lawyer or a referral of clients, then the PLSP would also be governed by rules governing lawyer referral services. See, R-6."
Similarly, in RI-167 we determined that an organization which encourages inventors to utilize the services of registered patent lawyers and registered patent agents, to which end, at no cost to inventors, the organization refers inventors to registered patent lawyers in their geographical area by randomly selecting names from a registration list compiled on computer software by the United States Patent and Trademark Office, selection being made without regard to whether such lawyers in any way support the organization, which organization subsists on contributions and profits from advertising services furnished by the organization to registered patent lawyers, is not a lawyer referral service required to be registered in the state.
We see nothing that distinguishes the intention of the church in this inquiry from those in RI-167 and RI-223. Members of the congregation may receive services from lawyers on the church list, or from any other lawyer. It seems clear, therefore, that the church providing names of lawyer congregation members to other members of the congregation does not make the church into a lawyer referral service required to be registered under MRPC 6.3.
The lawyer's participation in the proposed arrangement may not violate MRPC 7.2(c) which prohibits a lawyer from giving anything of value to a nonlawyer in return for recommending the lawyer's services. In RI-147 we concluded that although a lawyer may offer legal services at a discounted rate, a lawyer may not allow a Chamber of Commerce to advertise, as an incentive for membership in the Chamber, that the lawyer offers discounts to the Chamber's members. In that opinion it was proposed that the Chamber would receive a percentage of any legal fees collected from hotline callers.
In RI-163 the Committee reviewed a lawyer's plan to give a portion of the lawyer's fee to a designated church. The Committee reasoned that since the church was not involved in the communication of the pledge by the lawyer, the organization was not using the lawyer's offer as an incentive, is not endorsing the lawyer's qualifications, and is in no way encouraging the use of the lawyer's services, the communication does not constitute "giving of value" for a referral in violation of MRPC 7.2(c).
In the fact situation before us, the lawyer independently agrees to special rates if there is a bequest to the church. Although the lawyer is offering a special rate to members of the congregation who wish to leave a bequest to the church, the special rate is not an incentive for joining the church and the church receives nothing from the lawyer for being placed on the list. The church does communicate the fee discount to members of the congregation, and the fee discount is an incentive for members of the congregation to leave bequests to the church. However, the church has no control over whether, after adequate counseling from the lawyer, a congregation member actually makes a bequest to the church or not. Indeed, the lawyer could not allow the church's suggestion of a particular bequest to interfere with the lawyer's independent professional judgment and guidance to the client regarding the type of estate planning which is in the client's best interests. MRPC 5.4. Since the lawyer could directly communicate the offer to members of the congregation, RI-163, we do not see that the church's communication of the same offer constitutes "receiving value" as contemplated under MRPC 7.2(c).
RI-147 further opined that a lawyer may allow another person or organization to recommend the lawyer's services, provided that (a) the person or organization has had a prior professional relationship with the lawyer to enable the person or organization to be knowledgeable about the lawyer's services, (b) the lawyer reviews the advertisement prior to publication for compliance with ethics rules, and (c) nothing of value beyond the reasonable cost of the advertising is given to the person or organization by the lawyer.
The inquirer does not indicate whether the church has ever used the lawyer's services. To the extent the church has not done so and has made no evaluation of the lawyer's competence, it would be misleading for the lawyer to permit the church to recommend the lawyer's services. MRPC 7.1. The lawyer may only allow the recommendation of the lawyer's services by persons who are familiar with the lawyer's work. RI-147.