Can a California lawyer hire a 'medical liaison' to give a promotional presentation to physicians who may then refer patients, and how does Rule 1-400 apply across the chain from lawyer to liaison to physician to patient?
State Bar of California COPRAC Formal Opinion 1995-143: Medical Liaison Presentations to Physicians and Rule 1-400 Communications and Solicitations
Short answer: The opinion concluded that a medical liaison's promotional presentation to physicians is a "communication" within former Rule 1-400(A). The lawyer is subject to discipline if the presentation contains an untrue statement or otherwise violates former Rule 1-400(D), and is presumed to violate the rule if the presentation fails the Board's standards under 1-400(E). The lawyer may not allow the liaison to offer the physicians any direct or indirect benefit for recommending the lawyer (former Rule 1-320(B)). The physician's in-person contact with patients is also a solicitation under 1-400(B), but is prohibited under 1-400(C) only when the physician is acting as the lawyer's agent.
Currency note
This opinion was issued in 1995, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former Rules 1-320, 1-400, and 3-210, together with Business and Professions Code section 6152. The substance of former Rule 1-400 is now in current Rules 7.1, 7.2, and 7.3, and former Rule 1-320 corresponds to current Rule 5.4 and parts of 7.2. Subsequent rule amendments and later opinions may have changed parts of the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule reference.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
The opinion analyzed the chain in three segments: (1) the lawyer's contact with the medical liaison, (2) the liaison's presentation to a group of physicians, and (3) the physicians' contact with patients who might become potential clients. The committee opined that all three segments are "communications" under former Rule 1-400(A) because they are messages concerning the availability of the lawyer's professional employment "directed to" prospective clients, even if the chain passes through intermediaries before reaching them.
The first two segments, although designed to result in employment for pecuniary gain, are not solicitations under 1-400(B) because they are not delivered in person or by telephone to potential clients. The third segment is both a communication and a solicitation (in-person delivery satisfies 1-400(B)(2)(a)), but is prohibited under 1-400(C) only when the physician is making the communication "on behalf of" the lawyer in the agency sense, including but not limited to situations in which the physician receives compensation or another quid pro quo. Whether agency exists is a case-by-case factual question; the committee identified mutual referrals, paying the physician as a speaker at lawyer-sponsored seminars, and use of the physician as a paid expert witness on the lawyer's cases as practices that may give rise to agency or violate 1-320(B) or 1-400(C).
Each segment, as a "communication," must conform to former Rule 1-400(D): no untrue statement, no misleading omission, no false, deceptive, or confusing presentation. The lawyer is presumed to have violated the rule if the liaison's promotional message fails the Board's standards under 1-400(E). The committee gave examples: presumptive violation if the message contains success guarantees (std. 1), states or implies "no fee without recovery" without disclosing client liability for costs (std. 14), or states or implies language capability the member lacks (std. 15). Standards 2 (testimonials) and 16 (fee amounts) may also apply.
The committee opined that merely hiring the medical liaison to give an otherwise permissible presentation does not violate Business and Professions Code section 6152(b), and that section 6152(c) preserves recommendations not prohibited by the Rules. The lawyer may not allow the liaison to offer, expressly or implicitly, any direct or indirect benefit to physicians for recommending the lawyer; doing so would violate former Rule 1-320(B).
Common questions
Q: Is a presentation by a paid liaison to physicians a "communication" if the patients never hear it directly?
A: Per the opinion, yes. A communication exists when a message about a lawyer's availability is "directed to" potential clients, regardless of whether it is ever actually received by any of them. Both the liaison-to-physician segment and the physician-to-patient segment qualify.
Q: When does the physician's recommendation become a prohibited solicitation?
A: Per the opinion, the physician's in-person recommendation is a solicitation under 1-400(B), but is prohibited under 1-400(C) only when the physician is acting as the lawyer's agent. Whether agency exists is a case-by-case factual issue and may turn on compensation or other quid pro quo arrangements.
Q: Can the lawyer pay the physician for the referrals?
A: Per the opinion, no. The lawyer may not allow the liaison to offer the physicians any direct or indirect compensation or benefit for recommending the lawyer; this would violate former Rule 1-320(B). The committee identified mutual referrals, paying the physician to speak at the lawyer's seminars, or hiring the physician as a paid expert witness as practices that may trigger 1-320(B) or 1-400(C).
Q: What about including success guarantees or "no fee without recovery"?
A: Per the opinion, presentations containing success guarantees presumptively violate former Rule 1-400 under standard 1, and "no fee without recovery" presentations without disclosure of client liability for costs presumptively violate the rule under standard 14.
Q: Does merely hiring the liaison violate the "runner or capper" statute?
A: Per the opinion, no. The committee opined that merely hiring a medical liaison to give an otherwise permissible presentation does not violate Business and Professions Code section 6152(b), and that 6152(c) preserves recommendations not prohibited by the Rules of Professional Conduct.
Background and rules framework
The opinion interprets former California Rule 1-320 (financial arrangements with non-lawyers), former Rule 1-400 (advertising and solicitation, including the definitions in 1-400(A) and (B), the prohibition in 1-400(C), the content rules in 1-400(D), and the Board standards under 1-400(E)), and former Rule 3-210 (prohibition on advising violations of law). The opinion also addresses Business and Professions Code section 6152 (runner-or-capper statute), particularly 6152(b) and 6152(c). The substance of former Rule 1-400 is now in current Rules 7.1, 7.2, and 7.3, and former Rule 1-320 corresponds to current Rule 5.4 and parts of 7.2, but the opinion's analysis is rooted in the former framework.
Citations and references
Rules of Professional Conduct (former, in effect at time of opinion):
- Former California Rule 1-320, particularly 1-320(B)
- Former California Rule 1-400, particularly 1-400(A), (B), (C), (D), and (E) stds. 1, 2, 14, 15, and 16
- Former California Rule 3-210
Statutes:
- California Business and Professions Code section 6151
- California Business and Professions Code section 6152, particularly 6152(a), (b), and (c)
- California Civil Code sections 2295 to 2300 (agency)
See also
- CA COPRAC Op. 1995-144: Clientless Investigations and Solicitation
- CA COPRAC Op. 1995-142: Direct-Mail Marketing of Legal Services
- CA COPRAC Op. 2001-155: Law Firm Internet Website Advertising
Source
- Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
- Original HTML: https://www.calbar.org/ethics/Opinions/1995-143.htm
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 1995-143
ISSUE:
A lawyer wishes to employ a "medical liaison" to give a presentation to a group of physicians. The presentation will contain a promotional message describing the lawyer and her practice. What are the lawyer's ethical responsibilities with respect to the medical liaison's presentation?
DIGEST:
The liaison's presentation will constitute a "communication" subject to scrutiny under rule 1-400 of the California Rules of Professional Conduct because it contains a promotional message. The lawyer, therefore, may be subject to discipline if the liaison's presentation contains any untrue statement or otherwise contravenes rule 1-400(D), and shall be presumed to violate rule 1-400 if the presentation does not meet the standards adopted by the Board of Governors of the State Bar under rule 1-400(E). Furthermore, the lawyer may not allow the liaison to represent, either expressly or implicitly, that the physicians will receive any fee, referral or other consideration of any kind in exchange for recommending patients to the lawyer. (Rule 1-320(B).) Where the physician acts as an agent of the lawyer in soliciting a client, rule 1-400(C) prohibits the communication as an impermissible solicitation.
AUTHORITIES INTERPRETED:
Rules 1-320 and 1-400 of the Rules of Professional Conduct of the State Bar of California.
Business and Professions Code section 6152.
DISCUSSION
The ethical responsibilities arising from a lawyer's use of a "medical liaison" to give a presentation containing a promotional message to a group of physicians who, in turn, eventually might recommend patients to the lawyer depends upon an analysis of each segment of the communication chain. There are three segments: (1) lawyer's contact with the medical liaison; (2) medical liaison's contact with the physicians; and (3) physician's contact with patients/potential clients. As discussed below, we find that all three segments of the chain are "communications" within the meaning of California Rule of Professional Conduct 1-400(A) and that the third segment (physician's contact with patients/potential clients) is also a solicitation as defined by rule 1-400(B). Although the third segment is a solicitation, it is not prohibited by rule 1-400(C) unless the physician is the agent of the lawyer.
Rule 1-400(A) defines a "communication" as "any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client . . . ." Rule 1-400(B), in part, provides:
(B) For purposes of this rule, a "solicitation" means any communication:
(1) Concerning the availability for professional employment of a member or a law firm in which a significant motive is pecuniary gain; and
(2) Which is;
(a) delivered in person or by telephone . . . .
The first segment, lawyer's contact with medical liaison, is a communication because it is a message made by the lawyer concerning the availability for professional employment "directed to" prospective clients. It is clear that a communication can be found when a message is merely "directed to" potential clients regardless of whether such message is ever actually received by any potential client. Electronic media advertising is an example of such messages. Here, the lawyer's obvious objective in employing the medical liaison is to receive client inquiries following an anticipated eventual transmission of the message by the physicians to patients. Thus, the message is a communication.
The second segment, medical liaison's contact with the physicians, is similarly a communication "directed to" potential clients. It differs only in that it is made "on behalf of" the lawyer rather than personally by the lawyer.
Although these first two segments are communications and are clearly designed to result in employment for pecuniary gain, they are not solicitations because there is no "in-person" (or "telephone") delivery to the potential clients. In this regard, the first two segments are significantly different from the third segment.
The third segment, physician's contact with patients/potential clients, is both a communication and a solicitation. Like the first and second segment, it is a message concerning availability of employment originating with the lawyer which is "directed to" potential clients (the patients). Since the medical liaison's presentation (the second segment) included a promotional message, it would be difficult for the lawyer to reasonably argue that this final segment of the chain was never contemplated and that it should not be characterized as a communication. The third segment is also a solicitation as defined in rule 1-400(B) because the message ("directed to" potential clients) is, moreover, delivered in-person. Although the third segment fits the general definition of solicitation, it is not necessarily a solicitation prohibited by rule 1-400(C).
Rule 1-400(C), in part, provides that "[a] solicitation shall not be made by or on behalf of a member or law firm to a prospective client . . . ." (Rule 1-400(C), emphasis added.) Unlike the communication definition (rule 1-400(A)) and solicitation definition (rule 1-400(B)), the language used in the solicitation prohibition (rule 1-400(C)) does not reach messages "directed to" a prospective client. Rather, a prohibited solicitation actually must be made by or "on behalf of" the lawyer "to" the prospective client. The test for determining that a message "to" a prospective client is made "on behalf of" a lawyer is whether the physician is acting as the lawyer's agent, including but not limited to those situations where the physician receives compensation (or any other quid pro quo) from the lawyer or the intermediary. This critical factual issue must be analyzed on a case by case basis.
As each segment of the chain is, at least, a "communication" conveyed by or on behalf of the lawyer, it must conform to rule 1-400(D). Thus, the "communication" cannot contain any untrue statement, nor may it either omit to state any fact necessary to make the statements made, in light of circumstances under which they are made, not misleading or be presented in a manner that is false, deceptive or which tends to confuse, deceive or mislead. (Rule 1-400(D).)
The lawyer will be presumed to have violated rule 1-400 if the liaison's promotional message fails to meet the standards adopted by the Board of Governors pursuant to rule 1-400(E). For example, a presumptive violation of rule 1-400 occurs if the promotional message contains guarantees or predictions regarding the prospects for success enjoyed by clients of the firm (rule 1-400(E), std. 1), if it states or implies "no fee without recovery" without also expressly disclosing whether or not the client will be liable for costs (rule 1-400(E), std. 14), or if it states or implies that a member of the firm is able to provide legal services in a language other than English unless the member can actually provide legal services in such language. (Rule 1-400(E), std. 15.)
Furthermore, the lawyer does not violate Business and Professions Code section 6152, subdivision (b), by merely hiring the medical liaison to give an otherwise permissible presentation. (See also rule 3-210 which prohibits a member from advising the violation of any law.)
Of course, the lawyer may not allow the medical liaison to offer, expressly or implicitly, any direct or indirect form of benefit to the physicians for recommending the lawyer to the physicians' patients. The promise of any form of compensation or other consideration accruing to the physician for making a recommendation would violate rule 1-320(B) (Financial Arrangements with Non-Lawyers).
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.