Can a law firm buy an ad in a union's service directory and let the union endorse it and hand out the firm's business cards to members?

Plain-English summary

A law firm was asked by the AFL-CIO to buy a $425 one-time ad in the union's professional service directory. In exchange, the union would endorse and recommend the firm to its members in a county, and would take a number of the firm's business cards, stamp them with the union insignia, and hand them out at union meetings. The firm asked whether participating would create a problem with paying for referrals.

The Disciplinary Commission answered that the firm may purchase the ad, accept the union's endorsement and recommendation, and provide business cards for the union to distribute, so long as the firm does not pay the union for that service or its endorsement. The opinion explained that Rule 8.4(a) makes it misconduct to violate the Rules through the acts of another, so a lawyer may not use a third party to solicit employment or use an organization that is a mere front for the lawyer's solicitation. It recalled that the Commission had approved certain employer prepaid legal-service plans while disapproving "for profit" lawyer referral plans (RO-90-49) and had, in RO-91-17, prohibited a lawyer from paying "Welcome Wagon" two dollars per solicitation.

The Commission found this situation different because the union is not a mere front for the lawyer and the lawyer is not paying the union for referrals or contacts. It relied on Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1 (1964), and United Transportation Union v. State Bar of Michigan, 401 U.S. 576 (1971), in which the Supreme Court upheld unions' First Amendment right to advise members about legal services and to channel them to selected competent counsel. Because the union here was approving and recommending professional-service providers to its membership, the firm could participate as a union-endorsed attorney, and the $425 one-time ad cost was not excessive and could not be viewed as a payment for solicitation.

Currency note

This opinion was issued in 1993, before the 2002 Ethics 2000 revisions to the ABA Model Rules of Professional Conduct and Alabama's subsequent amendments to its Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a law firm buy an ad in a union's service directory and accept the union's endorsement?

A: Per the opinion, yes; the firm may buy the ad and accept the union's endorsement and recommendation, so long as it does not pay the union for the referrals or the endorsement.

Q: Can the firm give the union its business cards to hand out at meetings?

A: Per the opinion, yes, provided the firm does not pay the union for that service.

Q: Does paying $425 for the ad count as paying for referrals?

A: No. The opinion concluded the $425 one-time ad cost was not excessive and could not be viewed as a payment for solicitation.

Background and rules framework

The opinion interprets Rule 8.4(a) of the Alabama Rules of Professional Conduct (Model Rule 8.4, violating the Rules through the acts of another) and the bar on paying for recommendations of the lawyer's services (Model Rule 7.2). It applies First Amendment precedent (Brotherhood of Railroad Trainmen and United Transportation Union) recognizing a union's right to recommend counsel to its members, and distinguishes paid, for-profit referral arrangements.

Citations and references

Rules of Professional Conduct:

• Model Rule 8.4 / Ala. R. Prof. C. 8.4(a) (misconduct through the acts of another)
• Model Rule 7.2 / Ala. R. Prof. C. 7.2 (no payment for recommending the lawyer's services)

Cases:

• Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1 (1964) (union's right to recommend counsel)
• United Transportation Union v. State Bar of Michigan, 401 U.S. 576 (1971) (collective activity for access to courts is protected)

Other opinions cited:

• Ala. Formal Op. RO-90-49 (prepaid legal-service plans approved; for-profit referral plans disapproved)
• Ala. Formal Op. RO-91-17 ("Welcome Wagon" per-solicitation payment prohibited)

See also

• AL Ethics Op. 1993-23: bankrolling a referral-front firm
• AL Ethics Op. 1993-20: paying a non-lawyer for services

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1993-15/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-93-15.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS OPINION

RO-93-15

QUESTION:

"Pursuant to our recent conversations, I have enclosed the ad that the AFL-CIO is asking us to purchase in their professional service directory. My understanding is that this ad costs $425.00, and is a one-time fee. If we buy this ad, it is my understanding that the AFL-CIO will endorse and recommend our firm to its members in ______ County. Additionally, they will secure a number of business cards from us, stamp them on the back with the Union insignia, and hand them out at Union meetings. My concern, obviously, is that I do not want to even come close to an ethical problem related to paying for referrals.

Please look over this ad and let me know whether there would be a problem with our firm participating in this."

COMPLIMENTS FROM

THE LAW FIRM OF

UNION ENDORSED ATTORNEYS

FOR ______ CO.

REQUIRED DISCLAIMER

ANSWER:

You may purchase an ad in the AFL-CIO (Union) service directory and accept the endorsement and recommendation of the Union. Additionally, you may provide the Union with business cards to be handed out by the Union at their meetings so long as you do not pay the Union for this service or their endorsement.

DISCUSSION:

Rule 8.4(a) of the Rules of Professional Conduct provides that it is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct through the acts of another. Thus, it would be improper for a lawyer to use a third party to solicit professional employment on his or her behalf. Similarly, using an organization that is a mere front for solicitation by a lawyer or lawyers is also prohibited.

Consequently, the Disciplinary Commission has approved certain employer prepaid legal service plans including those marketed by American Express and Montgomery Ward, while disapproving the use of "for profit" lawyer referral plans. [RO-90-49(A) & (B), "Personal Injury Trial Lawyers Association, Inc.", "Bankruptcy Attorneys Trust and DWI/DUI Defense League"]. In RO-91-17, the Disciplinary Commission prohibited a lawyer's participation in "Welcome Wagon" where the lawyer agreed to pay "Welcome Wagon" two dollars for each solicitation made on behalf of the lawyer.

The issue presented here is somewhat different in that the Union is not a "mere front" for the lawyer nor is the lawyer paying the Union for referrals or contacts. In Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1 (1964), the State Bar attempted to enjoin a Union from referring Union members' tort claims to a group of lawyers selected by the Union on the basis of honesty and competence in handling railroad personal injury cases. The court upheld the Union's right to advise its members concerning the need for legal services as part of a constitutional right of workers to assist and advise each other. Similarly, in United Transportation Union v. Michigan State Bar, 401 U.S. 576 (1971), the Michigan State Bar attempted to enjoin a Union representative from visiting injured Union members and encouraging them to retain Union approved lawyers that had agreed to charge a contingent fee no greater than 25%. The Union's stated purpose of this activity was to get competent and affordable counsel for its members. The court held that this collective activity for obtaining meaningful access to the courts was a fundamental right under the First Amendment. The constant factor in these cases was the presence of organized labor seeking legal services to meet specific legal needs arising out of activity which formed the basis of group membership.

The situation presented by this inquiry is similar to the situations in the above cases. The Union is attempting to approve and recommend various professional service providers to its membership. For that reason, it is the view of the Disciplinary Commission that you may participate in this plan as an attorney endorsed by the Union. The Commission notes that the $425.00 ad cost is not excessive, is charged only once and, therefore, cannot be viewed as a payment for solicitation.

RWN/vf

7/27/93