NOTE: This opinion has been superseded by the Michigan Rules of Professional Conduct effective October 1, 1988.
February 22, 1982
It is ethically improper for a law firm to maintain and operate a private legal referral service that is inconsistent with the noted provisions of Dr 2-103. It is likewise ethically improper to maintain said referral service in the guise of an advertisement media scheme.
According to the facts supplied, it appears that your firm along with several other law offices desire to consolidate advertising resources, utilizing various modes of available media. The presented facts further indicate an intent to establish an answering service to operate 24 hours a day. Clients would be assigned to each attorney on an alternating basis. The recommended lawyer would then pay a referral (fee) into the account of the advertisement group entity. The inquirer further indicates that the referral fee would be used to expand the advertising efforts and to pay the costs of the answering service. The inquirer further acknowledged that the advertisement consortium would receive no profits or income. The inquirer further admits that the legal firms per se will not be advertised, but the referral service itself will be mentioned and the availability of legal information and free initial consultation will be noted to the prospective client. The inquirer indicates possible statewide usage and the utilization of television media.
Since the Michigan Supreme Court adopted Administrative Order 1978-4, suspending most of the Disciplinary Rules on lawyer advertising, this Committee has opined on a number of occasions that a lawyer may advertise the availability of legal services by any means to the extent that the publicized information is truthful. Administrative Order 1978-4 provides in part:
"A lawyer shall not request a person or organization to recommend or promote the use of the lawyer's services or those of his/her partner or associate, or any other lawyer affiliated with him or her firm, as a private practitioner, except that: . . . ."
In C-218 the Committee opined and re-affirmed the prohibition against solicitation contained in DR 2-103. The aforestated issued Administrative Order, supra placed no restrictions on the mode of communication.
The explained intended advertisement referral/solicitation scheme is ethically inappropriate. The advertising referral service as outlined does not have the public sponsored approval of a legal institution or accrediting agency. In summary, the explained referral service will in all probability constitute the utilization of lay intermediaries to make recommendations and or client solicitations or assignments on behalf of undefined legal firms. The rationale for precluding intermediaries other than those institutions explained under the provisions of DR 2-103(D) to make such recommendations is to avoid undue influences and or misstatements as to law or fact in attempting to persuade a potential client to employ a specific attorney especially under the circumstances as noted when the potential client will not have any previous knowledge of the existence or qualifications of a selected law firm.
As acknowledged by the inquiry, the recommending intermediary will be a law person. In C-218, the Committee further opined:
"The use of an intermediary who is not an attorney to solicit potential clients may also present other risks. The non-lawyer intermediary may be more likely to misstate the applicable law or the client's legal remedies, either through inadvertence or ignorance or on purpose, in attempting to persuade the client to employ a specific attorney, and may even attempt more extreme, less ethical conduct than an attorney might use in soliciting clients because he/she might not feel bound to adhere to the standards incorporated into the Code of Professional Responsibility. The use of intermediaries would also significantly increase the likelihood that the privacy of potential clients would be invaded. Finally, the potential for all these harms increases if the intermediary has or perceives that he/she might have an interest in successfully soliciting clients. Therefore, the use of intermediaries is just as likely to pose dangers that the state has a right to prevent as direct in-person solicitation by an attorney."
It is the Committee's opinion that the service summarized in essence, establish a lawyer referral service. Since the proposed referral service is not operated or sponsored by one of the agencies listed in the Code of Professional Responsibility, it is not permitted unless you satisfy the requirements of DR 2-103(4).