Can a legal-aid employee refer clients it cannot serve to individual local lawyers instead of to the bar's statewide referral service?

Plain-English summary

The Committee was asked whether an employee of Alaska Legal Services may ethically refer ineligible clients and fee-generating cases to individual lawyers within the community, rather than to the statewide lawyer-referral office in Anchorage. It applied DR 2-103, which governs recommendations of professional employment. DR 2-103(A) provides that a lawyer is not prohibited from being recommended by certain organizations that promote the lawyer's services, including one operated or sponsored by a governmental agency such as the federally funded Alaska Legal Services Corporation, if there is no interference with the lawyer's independent professional judgment. The opinion reasoned that, if a lawyer is not prohibited from accepting such a recommendation, it follows that an ALSC employee is not prohibited from making it.

The opinion found support in ABA Informal Opinion 1334, which had concluded that no Disciplinary Rule forbids a lawyer with a legal aid society from referring a matter to private counsel; while the facts differed (there the society had accepted the client and paid the referred lawyer's fee), the same rationale applied. The opinion noted the concern that private lawyers might solicit such referrals, but explained that DR 2-103(B) (a lawyer shall not give anything of value to obtain or reward a recommendation, except approved dues) and DR 2-103(C) (a lawyer may not request a recommendation except from a bar-approved referral service) address those lawyers' conduct, and that disciplining an offending lawyer is more appropriate than barring legal-aid employees from making good-faith referrals. It concluded that no Disciplinary Rule is necessarily violated by such referrals.

Currency note

This opinion was issued in 1979, before the Alaska Bar Association's adoption of the Alaska Rules of Professional Conduct (it applies the former Code of Professional Responsibility) and before the 2009 revisions to those rules. The rules on referrals and solicitation have since been recodified. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can a legal-aid office refer a client it can't help to a local private lawyer?

A: The opinion concluded no Disciplinary Rule is necessarily violated by referring ineligible clients and fee-generating cases to individual local lawyers rather than to the statewide referral program.

Q: Does the referral have to go through the bar's statewide referral service?

A: The opinion concluded it need not; DR 2-103(A) permits a lawyer to be recommended by a government-sponsored organization, so an ALSC employee may make the referral.

Q: What about private lawyers soliciting these referrals?

A: The opinion concluded that DR 2-103(B) and (C) govern the referred lawyers' conduct, and that disciplining an offending lawyer is more appropriate than barring good-faith referrals by legal-aid employees.

Background and rules framework

The opinion applied the former Code's recommendation-of-employment rule (DR 2-103, subsections (A), (B), and (C)), the subject now treated by Model Rule 7.2 (communications and referrals), and relied on ABA Informal Opinion 1334 concerning legal-aid referrals.

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 2-103(A) (permissible recommendation by a government-sponsored organization) (cf. Model Rule 7.2)
• DR 2-103(B), (C) (no payment for, or request of, a recommendation, with limited exceptions)

Other opinions cited:

• ABA Informal Opinion 1334: legal-aid society referrals to private counsel

See also

• Alaska Ethics Op. 81-1: In-Person Pro Bono Offer and Solicitation
• Alaska Ethics Op. 92-5: Solicitation of Clients
• Alaska Ethics Op. 79-4: Legal-Services Board Review and Conflicts

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/78-5.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinion No. 78-5
Whether it is Ethical for an Employee of Alaska Legal Services to Refer
Ineligible Clients and Fee-Generating Cases to Individual Lawyers Within
the Community Rather than to the Statewide Lawyer Referral Office in
Anchorage.
The problem presented is whether it is ethical for an employee of Alaska
Legal Services to refer ineligible clients and fee-generating cases to individual
lawyers within the community rather than to the statewide lawyer referral
office in Anchorage.
DR 2-103 is the applicable rule regarding recommendations of
professional employment. In particular, DR 2-103(A) states that a lawyer is not
prohibited from being "recommended, employed or paid by, or cooperating
with, one of the following offices or organizations that promote the use of his
services . . . if there is no interference with the exercise of independent
professional judgment in behalf of his client." The section then proceeds to list
the organizations from which a lawyer is not prohibited from being
recommended, including one operated or sponsored by a governmental agency
(such as the federally funded Alaska Legal Services Corporation). Although the
rule is stated in terms that a lawyer is not prohibited from accepting a
recommendation from an organization like ALSC, it would seem to follow
therefrom that an employee of ALSC is not prohibited from recommending the
lawyer.
Although it was primarily concerned with the fee arrangements of legal
aid societies, ABA Informal Opinion No. 1334 lends support to this conclusion.
In that opinion, one of the questions presented was whether a legal aid society
could accept a client and then refer the matter to private counsel who, in turn,
is compensated by the legal aid society. It was ruled that "no Disciplinary Rule
forbids a lawyer with a legal aid society from making such a reference or
forbids a lawyer from receiving such a reference on any fee basis that is
mutually satisfactory and that is not clearly excessive or illegal." Obviously,
there are differences between the situation addressed in the opinion and the
present problem. In the opinion, the legal aid society had already accepted the
client, whereas in the present situation, the referrals are being made to persons
determined to be ineligible to receive benefits from ALSC. Also, in the opinion,
the fees of the lawyer referred to by the legal aid society were paid by the
society, rather than the client himself. However, such differences do not
prevent the conclusion that an employee of such a legal aid society is not
prohibited from referring a client to another lawyer, since the same rationale
used by the Ethics Committee in Informal Opinion No. 1334 is equally
applicable under the present circumstances, i.e., no Disciplinary Rule forbids a
lawyer with a legal aid society from making such a reference.
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An obvious concern with such a conclusion is the solicitation of such
referrals by private lawyers. However, Disciplinary Rules 2-103(B) and 2-103(C)
would address the activities of such lawyers. DR 2-103(B) states that except by
paying dues to certain approved organizations, a lawyer shall not give anything
of value to anyone to recommend his employment or as a reward for having
made a recommendation resulting in his employment by a client. Additionally,
DR 2-103(C) states that a lawyer may not request anyone to recommend him,
except, he may request referrals from a referral service approved by a bar
association. Any violation of these two rules would subject the offending lawyer
to disciplinary proceedings, which would appear to be more appropriate than
prohibiting employees of a legal aid society from making such
recommendations on a good faith basis.
In conclusion, no Disciplinary Rule is necessarily violated by the referral
by employees of the Alaska Legal Services Corporation of ineligible clients to
private lawyers rather than to the statewide lawyers referral program.
Adopted by the Board of Governors on March 31, 1979.

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