NC Bar Issues Ethics Opinion on Referral Lists
A lawyer may be included in a list of recommended lawyers maintained by an allied professional like a doctor or accountant, provided the professional does not disseminate the lawyer’s name and information in a manner prohibited by the Rules of Professional Conduct.
That’s according to NC ethics opinion 2022 FEO 3, adopted by the NC State Bar on July 22, 2022.
Here is the factual scenario addressed by NC State Bar 2022 FEO 3:
Doctor works at a local medical office. Doctor often treats patients who suffered injuries resulting from car accidents. On occasion, these patients ask Doctor if Doctor knows of any lawyers who could represent the patient regarding their involvement in the car accident. Doctor has decided to create and offer to patients a list of lawyers to assist the patient in identifying and choosing a lawyer.
Lawyer focuses his practice on personal injury matters. Doctor has previously worked with patients represented by Lawyer and believes Lawyer can provide reliable representation to patients. Doctor has asked Lawyer if she may recommend Lawyer to her patients by including Lawyer on her list of lawyers.
The ethics question: May Lawyer agree to his inclusion on Doctor’s list of lawyers?
Yes, provided that there is no quid pro quo exchange for recommending Lawyer’s services, and provided that Lawyer has not instructed Doctor to engage in improper solicitation of Doctor’s patients for legal services offered by Lawyer and Lawyer does not understand Doctor to engage in improper solicitation.
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NC State Bar 2022 FEO 3
Here are some highlights from the ethics opinion:
- “Rule 7.2 prohibits a lawyer from compensating, giving, or promising anything of value to a person for recommending the lawyer’s services. A lawyer offering to refer a client to an allied professional in exchange for a referral from the professional to the lawyer’s practice, rather than based on the professional’s independent analysis of the lawyer’s qualifications, constitutes an improper quid pro quo.”
- “Rule 7.3 defines solicitation as ‘a communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services.’ Rule 7.3(b) prohibits a lawyer from soliciting professional employment ‘by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain[.]’ A lawyer may not engage in conduct that would constitute a violation of the Rules of Professional Conduct through the acts of another.”
- “Doctor has described the proposal as a list of potential legal service providers to be given to interested patients who are in need of and/or seeking legal services. Lawyer has not instructed Doctor to solicit business from Doctor’s patients for Lawyer, and Lawyer has no reason to expect that Doctor will engage in improper solicitation of Doctor’s patients. Furthermore, Lawyer’s inclusion on the list is not in exchange for referrals to Doctor’s practice in the manner of an improper quid pro quo.”
- Inquiry #2: “May Lawyer initiate and pursue a conversation with Doctor to inform Doctor of Lawyer’s practice and services for the purpose of having Doctor provide her patients with Lawyer’s information or place Lawyer on Doctor’s “recommended lawyers” list to be given to patients?”
- Opinion #2: “Yes, provided that Lawyer does not instruct Doctor to engage in improper solicitation of Doctor’s patients for legal services offered by Lawyer and Lawyer does not understand Doctor to engage in improper solicitation, and provided that there is no quid pro quo exchange for recommending Lawyer’s services.”
- Inquiry #3: “Same scenario as Inquiry #1, except Lawyer has learned that, after agreeing to be included in Doctor’s list of lawyers, Doctor is refusing to treat patients unless the patient has legal representation from someone on Doctor’s list. May Lawyer continue his inclusion in Doctor’s list of lawyers?”
- Opinion #3: “No. Rule 7.3(c) prohibits a lawyer from soliciting professional employment if “the solicitation involves coercion, duress, or harassment.” Rule 7.3(c)(2). In this scenario, Lawyer has learned that Doctor is creating duress for her patients and coercing patients into obtaining legal representation from Lawyer by refusing to provide medical treatment unless the patient obtains legal representation. Lawyer could not engage in such conduct himself, and therefore cannot engage in conduct through the actions of Doctor with whom Lawyer has associated for the purpose of disseminating information about Lawyer’s practice and legal services. Rule 8.4(a). Upon learning of Doctor’s conduct, and given the nature of Doctor’s conduct, Lawyer must immediately correct Doctor’s conduct or request his removal from Doctor’s list.”
Source: 2022 Formal Ethics Opinion 3 | North Carolina State Bar (ncbar.gov)
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