July 19, 1984
A lawyer may allow his name to be included on a referral list of social security lawyers provided by a disability insurer to an insured so long as (a) the lawyer has not requested that his name be included, (b) the insurance company is not compensated for the referral, and (c) the interests of the insurer and the insured are to secure experienced and competent representation for the insured in a somewhat specialized area of practice.
The lawyer must be careful to avoid any insurance company influence over independent professional judgment.
References: MCPR DR 2-103, DR 5-101(A), DR 5-105; CI-422.
An insurance company that underwrites long-term disability coverage is compiling a list of lawyers who they believe would be able and willing to represent disability claimants in an effort to obtain social security disability benefits. The insurance company's policy provides for coordination so that if a claim is successful the insurance benefit payable to the insured would be reduced by the amount of monthly social security benefits payable to the insured.
The claimant and the insurance company would both benefit by a successful social security claim. The claimant would end up with a greater in-pocket monthly benefit, and the insurance company's liability would abate. The interests of the claimant and the insurance company appear identical, i.e., to secure experienced and competent representation in a somewhat specialized area of practice.
A lawyer asks about the propriety of permitting his name to be included on a referral list of social security lawyers provided by an insurer to its insureds, upon the insured's request. The lawyer would have no connection with the insurance company, except his name would appear on the list. The insurance company has stated that the list would be given only to those requesting such information. The lawyer has not requested that the insurance company refer clients to him. Rather, the insurance company has extended the courtesy of requesting the lawyer's permission to include his name on the list.
MCPR DR 2-103(A) prohibits a lawyer from recommending his own services, unless his advice has been sought. MCPR DR 2-103(B) prohibits a lawyer from compensating any third party for recommending a lawyer's services unless the lawyer requests the recommendation. See CI-422.
On the narrow facts of this case, where the lawyer has not requested that his name be put on the referral list and no compensation of any sort is paid to the insurance company for a referral, it is ethically permissible for this lawyer to permit his name to appear on the list. We do not consider the insurance company, under these facts, to be an organization that furnishes or pays for legal services to others, and accordingly the MCPR DR 2-103(D) prohibition against assisting such an organization to promote the lawyer's services is inapplicable.
Though inclusion on the list is not per se impermissible, one must maintain the usual precautions regarding conflict of interests. Under these facts, the interests of the insurer and the insured appear completely compatible vis-a-vis the claim. In the event the insured developed a claim against the insurer, a new ethical question would arise. Although the insurance company is not a client of the lawyer, a possible conflict remains. MCPR DR 5-101(A) provides:
"Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests."
Consequently, if a claim should arise between the insured and the insurer, or if their interests should appear at any point to conflict, the lawyer must carefully consider conduct in light of MCPR DR 5-101(A) and DR 5-105. Further, in view of MCPR DR 5-107(B), the lawyer must be careful not to allow the insurance company to direct or regulate professional judgment.