Inclusion on Allied Professional’s List of Recommended Lawyers
Adopted: July 22, 2022
Opinion rules that a lawyer may be included in an allied professional’s list of recommended lawyers provided that the professional does not disseminate the lawyer’s name and information in a manner that is prohibited by the Rules of Professional Conduct.
Inquiry #1:
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.
May Lawyer agree to his inclusion on Doctor’s list of lawyers?
Opinion #1:
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.
Rule 7.2 prohibits a lawyer from compensating, giving, or promising anything of value to a person for recommending the lawyer’s services. Rule 7.2(b); see 2006 FEO 7; 2007 FEO 4. 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. 2006 FEO 7.
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(a). 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. Rule 8.4(a).
In 2007 FEO 4, this committee concluded that a lawyer may provide business cards or a brochure containing information about the lawyer’s practice to an allied professional for distribution to the professional’s patients/clients so long as the lawyer does not understand the professional will engage in in-person solicitation on the lawyer’s behalf. In reaching this conclusion, the committee cited the absence of “[t]he potential for abuse or overreaching” when a lawyer passively provides information about his practice to an allied professional for voluntary collection by potentially interested clients/patients of the professional. Id.
The same can be said for the present situation. 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. See RPC 57.
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. See Opinion #1.
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. Compare Rule 7.4 (requiring a lawyer to terminate his relationship with an intermediary organization upon learning the organization failed to comport its conduct to the requirements in Rule 7.4 despite the lawyer’s attempt to correct the conduct).