August 1, 1988
[Distinguished by RI-9]
It is ethically improper for a lawyer or law firm to participate in a marketing scheme whereby a paid intermediary advertises professional services of varying descriptions and upon receipt of telephonic inquiries directly connects the caller to a provider of such professional services selected by the intermediary.
References: MCPR DR 1-102(A)(5) and (6), DR 2-103(B) and (C); MCL 750.410; CI-447, CI-723, CI-801, CI-1058; Woll v. Attorney General, 116 Mich App 791 (1982); State Bar Grievance Administrator v. Jaques, on remand, 407 Mich 26 (1979).
An entrepreneur is setting up what it describes as "a telephone Yellow Pages" for services and other kinds of businesses. Paid subscribers are put in the "telephone Yellow Pages" listing; the entrepreneur plans to heavily advertise its service to the public at large. When a member of the public calls for a service, a representative determines what type of service is required then connects the caller directly with a person on the listing providing that service. A lawyer asks whether it is proper for the law firm to be included in the "telephone Yellow Pages" listing.
MCPR DR 2-103 provides in pertinent part:
"(B) 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 charged by [a qualified legal services plan].
"(C) A lawyer shall not request a person or organization to recommend or promote the use of his services or those of his partner or associate, or any other lawyer affiliated with him or his firm, as a private practitioner, except that [he may participate in a lawyer referral service run by a bar association or in a qualified legal services plan]."
MCPR DR 2-103(B) and (C) are also closely related to MCL 750.410, which criminalizes solicitation of personal injury claims. Although the statute has been subjected to a limiting construction because of First Amendment considerations, telephone calls whereby a contract for retention of a lawyer's services could result from an initial contact, in which the client has no opportunity for reflections as to either the need for legal services or the qualifications and desirability of retaining a particular lawyer, are deemed to fall within the ambit of the criminal prohibition. Woll v. Attorney General, 116 Mich App 791 at 806 (1982).
Merely requesting that another person recommend a lawyer's services, when nothing is expected to be paid for the referral, does not violate MCPR DR 2-103(C). State Bar Grievance Administrator v. Jaques, on remand, 407 Mich 26 (1979). In this case, however, the lawyer would pay a fee to be included in the listing, and falls squarely within the proscription of MCPR DR 2-103(B). To the extent the caller has a legal problem relating to a personal injury, MCL 750.410 is also implicated. A violation of a criminal statute is, axiomatically, unethical, as being a violation of MCPR DR 1-102(A)(5) and (6).
This analysis is consistent with a series of earlier informal ethics opinions. In CI-1058, a lawyer could not enter into an arrangement with a debt consolidation company whereby employees of the company would interview prospective clients, determine the possible need for legal services, and refer the prospective client to the lawyer. In CI-801, a law firm could not solicit referral recommendations from an identified professional group, or to encourage the operation of a referral service under the guise of an advertisement medial scheme. In CI-273 it was determined that private legal referral services, whether or not in the guise of a media advertisement scheme, violated MCPR DR 2-103 when maintained by a law firm. In CI-447, a lawyer was prohibited from paying a fee to a referral service which would enable the lawyer's name to be listed with merchants and tradesmen willing to provide services at a discount, where prospective consumers would pay a fee for the list. Whether the list was sold or disseminated without charge was not a factor in the opinion; the focus was on the lawyer's payment of a fee to someone who would then market the lawyer's services directly, rather than simply advertise them.
To summarize, the important elements which run the present scheme afoul of ethics rules are: (1) payment by a lawyer to a third person who (2) solicits potential clients and (3) refers those potential clients directly to the lawyer. This is not a situation in which the intermediary simply provides the names of lawyers providing a particular kind of service and leaves it to the potential client to choose from among the names provided or to go elsewhere. There may also be an element of deception, if the caller is left with the impression that a qualified person has screened the selection of a lawyer based on expertise rather than subscription.