January 17, 1983
A lawyer or group of lawyers may not advertise a lawyer's referral service soliciting the public and inviting prospective clients to interview by the lawyer's referral service with the intent to recommend lawyers who hold themselves out as legal specialists in areas of the law other than patent, trademark and admiralty law.
A lawyer may not advertise to the public a lawyer referral service in which subscribing lawyers pay the referral service a fee or anything of value for having been recommended by the referral service.
A lawyer may not conduct a lawyer referral service in a manner which appears to inform the solicited public that the referral list is a reputable law list or a referral service operated or sponsored or approved by a bar association.
A lawyer may not interview clients and refer them to subscribing lawyers without assuming responsibility for the competency of the lawyer to whom the referral is made. Further, the referral service must clearly define and communicate to the prospective client the referral service's responsibility and liability for the competence and professional quality of the services performed by the lawyer to whom the referral is made.
A lawyer referral service must be operated, sponsored, or approved by a bar association.
References: MCPR DR 2-102(A)(6), 2-103(B), (C), and (D)(iii), DR 2-105; Supreme Court Admin Order 1078-4; State Bar v. Jaques, on remand, 407 Mich 26 (1979).
A lawyer wishes to create a lawyer referral service in conjunction with the lawyer's professional corporation. The characteristics of the referral service are:
- All forms of advertising will use the name "Lawyer's Referral Service" but without reference to any specific lawyer, firm or group of lawyers.
- Advertising will be directed to businesses, professionals and lay people seeking or in need of legal services of any type. Advertising will inform the public that the nature of their problem may require the attention of a legal specialist as opposed to a general practitioner and advertise that the referral service has legal specialists available to address their needs. All advertising will conform to Michigan Supreme Court Administrative Order 1978-4.
- A select group of lawyers will be solicited to subscribe to the service and will be charged a monthly fee.
- The service will interview clients and refer them to subscribing lawyers based upon their needs and geographical location. A rotating roster will be used to refer clients to subscribing lawyers.
- Fees and costs will not be advertised. Fees will be at the discretion of the subscribing lawyer. In contingent fee matters a division of fees will be apportioned accordance with MCPR DR 2-107.
- The referral service will promote the high standards of the bar and uphold the code of professional responsibility.
- The service will benefit the public and the subscribing lawyers.
Supreme Court Administrative Order 1978-4 states:
"A lawyer may themselves, or any other lawyer affiliated with him or his firm, use or participate in the use of any form of public communication that is not false, fraudulent, misleading, or deceptive." Formal Ethics Opinion C-218 (August 1979) Michigan State Bar Journal, September 1979, 564.
The use of the term "Lawyer's Referral Service" may be violative of Admin Order 1978-4 in that it may be misleading. The profession, we believe, has come to think of a lawyer's referral service as being one operated, sponsored or approved by a bar association as is contemplated in the provisions of MCPR DR 2-103(C) and (D).
The import of the suggestion that advertising may inform the public that the nature of the prospective client's problem may require the attention of a legal specialist appears to violate the provisions of MCPR DR 2-105 which permits one to hold oneself out as a specialist only in patent and trademark law and admiralty. The committee does not believe that this limitation has been modified by the provisions of Admin Order 1978-4.
It is not stated how the "select group of lawyers" would be selected. It would be necessary to be certain that the lawyers selected were each competent in the fields for which they are recommended. The committee is not in a position to approve this phase of the proposal as it is not made clear how the operation would protect the public against "overreaching, and other forms of vexatious conduct" which the disciplinary rules may seek to prevent. See State Bar v. Jaques, on remand, 407 Mich 26 (1979).
The charge of a monthly fee would appear to violate MCPR DR 2-103(B) as the monthly fee would be "value" given for the recommendation resulting in the lawyer's employment, the referral list not being excepted as being listed in MCPR DR 2-103(D).
By interviewing clients who presumably would make an appointment as the result of the advertising solicitation followed by a recommendation, will the service assume the responsibility for the competence of the lawyer to whom the referral is made to perform the type of service required of the client interviewed? If not, does the client know this? What is the legal liability of the Lawyer's Referral Service and its responsibility to the client and is this responsibility and the limits thereof made clearly known to the client?
It is the opinion of the committee that the proposed Lawyer's Referral Service outlined in the inquiry is not sufficiently detailed nor sufficiently worked out so that it meets ethical requirements. Attention is directed to MCPR DR 2-102(A)(6), "reputable law list or legal directory." Although DR 2-102 is modified by Admin Order 1978-4, it is not totally abrogated. It is the committee's opinion that a lawyer's referral service such as proposed is really a law list under that provision.
See also, ABA i1183 addressing a lawyer to lawyer consultation panel inquiry service.