ISBA 1983

Can a lawyer who takes referrals from an organization pay that organization for clerical or paralegal help, or make regular contributions to it?

Short answer: The opinion concluded no; a lawyer may not, as part of a referral arrangement, pay a referring organization for its clerical or paralegal services, and may not make periodic contributions to it, because that amounts to giving something of value for the referrals.

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This page answers the general question as of 1983. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A tenants' organization proposed to refer its members' claims to an attorney for handling on a contingent basis, and asked the attorney to employ the organization's clerical and paralegal services on the referred claims. The committee was asked whether the attorney could compensate the organization for clerical services (on a contingent or non-contingent basis), compensate it for paralegal services, and make periodic voluntary contributions to it.

On the clerical services, the committee relied on Rule 2-103(d), under which a lawyer "shall not promise or give another person anything of value to initiate contact with a prospective client on behalf of the lawyer." Because the organization needed the money to fund its operations, paying it for clerical work would be of value to it; the committee concluded the attorney could employ the clerical services on an ad hoc basis, but not pursuant to an arrangement where that employment was a condition of, or consideration for, the referrals.

The same reasoning applied to paralegal services, with an additional bar: Rule 3-101(b) permits a lawyer to delegate work to a non-lawyer "employed by him" only if the lawyer supervises and assumes complete responsibility for the work, and here the paralegal was the organization's employee, not the attorney's, so the rule precluded the arrangement. On the contributions, the committee found that a genuinely voluntary contribution would not violate the literal terms of Rule 2-103(d) or EC 2-8, but that contributions made on a "periodic" basis would be hard to view as anything other than consideration for the referral work, and so would violate the intent of Rule 2-103(d).

Currency note

This opinion was issued in 1983, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 2010 Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in July 2010 as generally consistent with the 2010 Rules (Rule 5.3 and Rule 7.2(b) with its Comments [5] to [8]), noting Opinion 88-8, while cautioning that the specific standards referenced may differ from the 2010 Rules. 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 or requirement mentioned here.

Common questions

Q: Can a lawyer pay a referral source for clerical work on the referred cases?

A: The opinion concluded a lawyer may use such services on an ad hoc basis, but not pursuant to an arrangement where paying for them is a condition of or consideration for the referrals, which Rule 2-103(d) bars.

Q: Can the lawyer use the organization's paralegals?

A: No. Beyond the payment-for-referrals problem, Rule 3-101(b) lets a lawyer delegate work only to a non-lawyer employed by the lawyer, and the paralegal here was the organization's employee, not the attorney's.

Q: Can the lawyer instead make regular donations to the referring organization?

A: The committee concluded that periodic contributions would be difficult to treat as anything but consideration for the referrals, so they would violate the intent of Rule 2-103(d), even if a truly one-off voluntary gift would not.

Background and rules framework

The opinion applied former Illinois Code Rule 2-103(d) (not giving anything of value to initiate contact with a prospective client), Rule 3-101(b) (delegating work only to a non-lawyer the lawyer employs and supervises), and EC 2-8 (not compensating another for recommending the lawyer). The Board's 2010 affirmation maps the analysis to current Illinois Rules of Professional Conduct 5.3 (responsibilities regarding nonlawyer assistance) and 7.2(b) (not giving anything of value for a recommendation), corresponding to ABA Model Rules 5.3 and 7.2.

Citations and references

Rules of Professional Conduct:

Illinois Code Rules 2-103(d), 3-101(b); EC 2-8 (applied in the opinion)
Illinois RPC 5.3, 7.2(b) with Comments [5] to [8] (2010 equivalents per the Board's affirmation)
MR 5.3 (nonlawyer assistance); MR 7.2 (paying for recommendations)

Source

Landing page: https://www.isba.org/ethics/opinions/827

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