September 25, 1980
It is proper for a lawyer to be employed by a psychological clinic, provided the lawyer restricts his or her activities solely to advising patients as to the existence of legal problems
It is not proper for a lawyer to accept employment by those persons consulted as to the existence of a legal problem or referred by clinic staff for purposes of representation. It is further improper for the clinic to advertise the services of the attorney.
References: DR 2-103(D), DR 5-105, DR 5-107; CI-525.
Inquire has been made as to whether it would be proper for you to render legal advise to patients of a psychological clinic under certain circumstances. Our understanding of the facts is as follows: You will serve one evening a week at a clinic that renders psychological services and provides legal advice to clinic patients. You will be compensated at a fixed rate by the clinic. In addition, clinic staff members, identifying possible legal problems, would recommend seeking the advice of an attorney and mention you as a possible choice. It is our further understanding that the clinic may advertise your name in a local newspaper in connection with clinic services. Finally, you have indicated in a telephone conversation that the clinic will not bill the client directly, however the clinic may submit a claim to Blue Cross/Blue shield for reimbursement.
There is nothing in the Code of Professional Responsibility and Canons that would prevent your employment by a psychological clinic for the sole purpose of advising clinic patients as to whether they have a legal problem. However, certain circumstances you have described surrounding this employment appear to violate several disciplinary rules.
You state that clinic staff members identifying possible legal problems of clinic patients would recommend the seeking of an attorney and mention you as a possible choice. DR 2-103(D) provides:
"A lawyer shall not knowingly assist a person or organization that furnishes or pays for legal services to others to promote the use of his or her services or those of his or her partner or associate or any other lawyer affiliated with him or her of his or her firm except as permitted in DR 2-101(B). However, this does not prohibit a lawyer or a partner or associate or any other lawyer affiliated with him or her or the firm from being recommended, employed or paid by, or cooperating with, one of the following offices or organizations that promote the use of his or her services or those of a partner or associate or any other lawyer affiliated with him or her or the firm if there is no interference with the exercise of independent professional judgment on behalf of his or her clients . . . ."
The "offices or organizations" referred to in DR 2-103(D) includes a legal aid office or public defender office, a military legal assistance office, a lawyer referral service operated and sponsored or approved by a Bar Association, or a bona fide organization that recommends, furnishes, or pays for legal services to its members or beneficiaries, provided such organization has filed with the Michigan Supreme Court its legal services plan. Given the facts you have presented, the clinic does not appear to qualify as a permissible referral office or organization as required by DR 2-103(D), and therefore any referrals, recommendations, or promotion of your services by the clinic would be improper. Moreover, DR 2-103(C) prohibits a lawyer from requesting or encouraging a person or organization to recommend or promote the use of an attorney's services except those referrals from approved offices and organizations. Further, DR 2-103(E) would not permit you to accept employment under circumstances where you know, or it is obvious, those persons seeking to employ your services do so as a result of any prohibited conduct.
In addition, you explain the clinic may advertise your name in a local newspaper as offering legal counseling for patients of the clinic. Again, the recommendation of legal services requires professional judgment. Administrative Order 1978-4 has been interpreted to permit only qualified legal assistance offices and organizations described in DR 2-103(D) to advertise, recommend, or promote the use or availability of an attorney's services. The rationale for this restrictive interpretation is that these qualified agencies are ostensibly staffed by trained personnel having the legal expertise to screen the qualifications of lawyers they recommend. The use of a non-legal intermediary to advertise, recommend, or promote attorney services to potential clients is likely to result in adverse consequences which the state has a legitimate and importance interest in prohibiting. See State Bar Grievance Administrator v. Jacques, 407 and Mich 26; 281 NW2d 469 (1979). It is the opinion of the Committee that DR 2-103(C), (D), and (E) would prevent you from accepting any employment resulting from the clinic's advertising.
While the advising of clinic patients as to the existence of a legal problem is permissible, the Committee is of the further opinion that your employment essentially as a clinic staff attorney precludes individual representation of clinic patients. Upon identifying a legal problem that requires the services of an attorney, the clinic patient should be referred to outside counsel, even if the patient requests your services. Any acceptance or recommendation of self-employment would border on solicitous overreaching violating the spirit of DR 2-103 and DR 2-104.
Such individual representation would also call for the possible application of DR 5-105 and DR 5-107. DR 5-105 prohibits acceptance or continuation of employment if the interests of another client may impair the independent professional judgment of the lawyer. There is the possibility that a conflict of interest may arise between patient-clients and the clinic. DR 5-107 provides that an attorney shall not permit a person who recommends, employs, or pays that person to render legal services for another to direct or regulate one's professional judgment in rendering such legal services. The proposed compensation arrangement, coupled with subsequent patient representation, lends itself to the type of influence DR 5-107 seeks to prevent.
The Committee also has a concern over the compensation arrangement. Such an arrangement closely resembles fee splitting prohibited by DR 3-102. Additionally, it is unlikely that a claim for legal services rendered to clinic patients would be compensable under present Blue Cross/Blue Shield policy provisions. Compensation received from an improper Blue Cross/Blue Shield claim would be prohibited.
In summary, your employment by the clinic is proper under the Code, provided you restrict your activities solely to advising patients as to the existence of legal problems. Referral of client-patients by clinic staff, clinic advertising of your services, acceptance of employment by individual patients, and improper compensation arrangements are prohibited.