Can a Kentucky lawyer join a for-profit national lawyer referral service that selects the referred counsel, even if participating lawyers pay no fee?

Plain-English summary

Having addressed not-for-profit referral services in KBA E-296, the Committee took up the status of for-profit lawyer referral services, noting it remained unclear in part because Kentucky still adhered to the 1969 Code, and that the marketing of national for-profit services had provoked controversy elsewhere (citing a Maryland opinion that a lawyer may not participate in a for-profit lawyer referral service). It answered "No" for the arrangement described, in which the for-profit service selects referred counsel even though participating attorneys pay no fee.

The opinion relied on ABA Informal Opinion 85-1510 (1985), which held that the Code prohibits attorney participation in for-profit referral services where the for-profit organization selects referred counsel (Model Code DR 2-103(D)(4)) unless the service is bar association operated, sponsored, or approved (DR 2-103(D)(1)(d)), comparing the 1969 Code's DR 2-103(D). Because the Committee was not aware of any procedure for approving such services in Kentucky, and at least one service had taken the position that the Bar Association had no authority over it, the Committee concluded that such a service would violate the Code as applied literally. Noting that the Model Rules had been recommended for adoption but not yet adopted, it said attorneys should exercise caution before entering any such national referral arrangement, and pointed out that the described service is not a "Group Legal Services Arrangement" as defined and regulated in SCR 3.476.

Currency note

This opinion was issued in 1986 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. The opinion itself flagged that the Model Rules had been recommended but not yet adopted. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a Kentucky lawyer join a for-profit national referral service that picks the lawyer for each client?

A: Under this opinion, no. The Committee concluded that participation in a for-profit service that selects referred counsel violated the 1969 Code unless the service was bar-operated, sponsored, or approved.

Q: Did it matter that participating lawyers paid no fee to the service?

A: The opinion treated the no-fee feature as not curing the problem; the prohibition turned on the for-profit service selecting referred counsel without bar approval.

Q: Was a Kentucky bar-approval route available for such a service?

A: No. The opinion stated the Committee was not aware of any procedure for approving such services in Kentucky, so the arrangement violated the Code as applied literally.

Background and rules framework

The opinion applied the 1969 Code's referral provision, DR 2-103(D), which permits participation only in qualifying not-for-profit or bar-approved referral plans, read through ABA Informal Opinion 85-1510. The modern analogs are Model Rule 7.2 (a lawyer may pay the usual charges of a qualified lawyer referral service) and Model Rule 7.3 (solicitation). The analysis turned on the service being for-profit and selecting counsel without bar approval.

Citations and references

Rules of Professional Conduct:

• DR 2-103(D) (1969 Code)
• MR 7.2 (lawyer referral services); MR 7.3 (solicitation)

Other opinions cited:

• ABA Informal Op. 85-1510 (1985): for-profit referral services that select counsel
• Maryland Op. 81-75 (1981): lawyer may not participate in a for-profit referral service

See also

• KBA Ethics Op. E-296: Not-for-Profit Lawyer Referral Service
• KBA Ethics Op. E-344: Cooperative Advertising and For-Profit Referral

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-313.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-313
Issued: August 1986

This opinion was decided under the Code of Professional Responsibility, which was
in effect from 1971 to 1990. Lawyers should consult the current version of the Rules
of Professional Conduct and Comments, SCR 3.130 (available at
http://www.kybar.org), especially Rules 7.01-7.50 and the Attorneys' Advertising
Commission Regulations, before relying on this opinion.

Question:

May a Kentucky attorney legitimately enter into a referral attorney agreement with
a for-profit lawyer referral service (that operates on a nationwide basis) if no
payment is required of participating attorneys but the for-profit service "selects"
referred counsel?

Answer:

No.

References:

ABA Informal Opinion 85-1510 (1985); Maryland Opinion 81-75 (1981)
OPINION

While the Committee recently addressed the operation of not-for-profit lawyer referral
services in KBA E-296 (1984), the status of for-profit lawyer referral services remains unclear, in
part because this state adheres to the 1969 Code. Indeed, the marketing of national for-profit
services has provoked controversy in a number of jurisdictions. Maryland Opinion 81-79 (1981),
Law. Man. Prof. Con. § 801:4312 (lawyer may not participate in a for-profit lawyer referral
service).
The ABA recently addressed this question in ABA Informal Opinion 85-1510 (1985),
which held that the Code prohibits attorney participation in for-profit referral services in which the
for-profit organization "selects" referred counsel (Model Code DR 2-103 (D)(4)) unless the service
is bar association "operated sponsored, or approved" (Model Code DR 2-103 (D)(1)(d)). Cf. 1969
Code 2-103(D).
The Committee is not aware of the existence of any procedures for "approval" of such
services in this state, and at least one service making inquiry has taken the position that the Bar
Association has no authority over it. Accordingly, the Committee must conclude that such a
service would violate the Code as applied literally.
Although the Model Rules have been recommended for adoption by a Special Committee
of the Bar Association, they have not yet been adopted. Therefore, attorneys in this state should
exercise caution before entering into any such national referral services arrangement.

The Committee would point out that the above described service is not a "Group Legal
Services Arrangement" as such arrangements are defined and regulated in SCR 3.476.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky
Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor
rule). The Rule provides that formal opinions are advisory only.