Can a law school clinic refer hospital patients who are abuse victims to lawyers without violating the solicitation rules?

Plain-English summary

Opinion 261 (adopted November 21, 1995) addressed a pro bono program staffed by law students and supervised by a law professor that planned to give battered women legal information in a hospital emergency room and, on request, refer them to legal help. Patients with means would be referred to fee-charging lawyers (none affiliated with the counselors); eligible patients would be referred to pro bono clinics, some of which counselors might be affiliated with. No referral would be made unless the patient asked, counselors would only give names, and patients would pursue referrals on their own after leaving. The question was whether this violated D.C. Rule 7.1(b)(2) and (3), which bar seeking employment by in-person contact or through an intermediary where the solicitation involves undue influence or the potential client is in a condition unlikely to permit reasonable, considered judgment.

The committee divided the referrals in two. For referrals to unaffiliated lawyers, it concluded Rule 7.1(b) did not apply, because a lawyer who receives a referral from someone who is not the lawyer's agent, receives no consideration, and does not act under the lawyer's direction is not "seeking employment"; the lawyer is the passive beneficiary of a recommendation. The committee contrasted prior opinions where firms engaged an intermediary (an insurer paid per client, or a marketing agent) specifically to obtain clients.

For referrals to clinics some counselors were affiliated with, the committee concluded Rule 7.1(b) still did not apply on these facts, because the counselor gives a list without encouraging the patient to pick the affiliated clinic, so the program is not "seeking employment" for it. The committee distinguished In re Gregory, where a lawyer's aggressive in-person courthouse solicitation of unrepresented criminal defendants who had just learned their potential penalties exploited a vulnerable group; here the program gave a list only on request and let patients act on their own after time to reflect. It found the conduct closer to the information booth approved in D.C. Bar Op. 64 (1979).

Currency note

This opinion was issued in 1995, before the District of Columbia's adoption of the 2007 revisions to the 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: Does the solicitation rule apply to a third party referring a patient to a lawyer?

A: Not where the referrer is not the lawyer's agent, gets no consideration, and does not act under the lawyer's direction. The committee concluded such a lawyer is not "seeking employment" but is the passive beneficiary of a recommendation, so Rule 7.1(b) does not apply.

Q: What if the referral list includes a clinic the referrer is affiliated with?

A: The committee concluded Rule 7.1(b) still did not apply on these facts, because the counselor gave a list without encouraging the patient to choose the affiliated clinic, so the program was not "seeking employment" for it.

Q: Why was this different from improper courthouse solicitation?

A: In In re Gregory, a lawyer aggressively solicited vulnerable, unrepresented defendants in person. Here, the committee concluded, the program gave names only on request and let patients pursue referrals on their own after leaving the emergency room, minimizing any pressure on their choice.

Background and rules framework

The opinion interpreted D.C. Rule 7.1(b)(2) and (3). In the District of Columbia's rules at the time, the prohibitions on in-person solicitation were placed in Rule 7.1(b) (the analog to Model Rule 7.3, Solicitation of Clients), barring a lawyer from seeking employment by in-person contact or through an intermediary where the solicitation involves undue influence or where the potential client is apparently in a physical or mental condition unlikely to permit reasonable, considered judgment in selecting a lawyer. The committee noted that the program's possible unauthorized-practice question was a question of law it does not address.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 7.1(b)(2), (3) / Model Rule 7.1 (D.C.'s in-person solicitation provisions; compare Model Rule 7.3)

Cases:

• In re Gregory, 574 A.2d 265 (D.C. 1990), aggressive in-person solicitation of vulnerable defendants
• Pace v. State, 368 So. 2d 340 (Fla. 1979), solicitation rule does not reach disinterested recommendations
• In re Appert, 315 N.W.2d 204 (Minn. 1981), no solicitation where no value exchanged for a referral

Other opinions cited:

• D.C. Bar Op. 64 (1979): law student information booth did not violate the solicitation rules
• D.C. Bar Op. 253 (1994): per-client referral fee paid to an insurer

See also

• DC Ethics Op. 302: Internet Solicitation, Class Actions, and Bidding Services
• DC Ethics Op. 342: Internet-Based Lawyer Referral Service Fees
• DC Ethics Op. 307: Government Referral Program Percentage Fee

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-261