Can a Michigan lawyer be listed for free on an out-of-state firm's marketing website as its local referral attorney?

Plain-English summary

A lawyer asked whether he could be listed, at no charge, as the Michigan attorney on an out-of-state firm's website. The firm runs a national marketing campaign to develop personal-injury leads; prospective clients call the firm, which reviews the matter with the local lawyer, and a Michigan case is referred to the Michigan attorney after the two agree on a fee-sharing arrangement. The question was whether this violates the Michigan rules governing participation in a lawyer referral service.

The Committee read MRPC 7.2(c)(ii) (which permits paying the usual charges of a not-for-profit referral service meeting MRPC 6.3(b)) together with MRPC 6.3(b) (which sets qualification standards for a referral service a lawyer may pay to join). It found that the marketing arrangement did not meet the MRPC 6.3(b) standards, but also that neither rule contains an implied prohibition on participating in an arrangement that is not a qualifying referral service. MRPC 7.2(c) bars giving something of value for a recommendation, with exceptions; merely because one exception covers not-for-profit referral services does not mean participating in a for-profit arrangement is itself barred.

The Committee further relied on MRPC 6.3(c), which provides that the MRPC 6.3(b) requirements do not apply to lawyers jointly advertising in a manner that discloses the advertising is solely to solicit clients for themselves. It concluded the described program is overt marketing that promotes a defined group of lawyers associated with the sponsoring firm, not a lawyer referral service at all, so participation is not governed by MRPC 6.3(b) or 7.2(c)(ii). A footnote flags other rules the arrangement implicates (MRPC 7.1 advertising content, 1.5(e) fee division, 7.5(d) no implied partnership, and 1.6 confidentiality of caller information), while noting that what must be disclosed to the prospective client is beyond the opinion's scope.

In practice

The opinion holds that, under the Michigan rules as they stood at the time, the described website listing is treated as joint advertising under MRPC 6.3(c) rather than participation in a lawyer referral service, so the MRPC 6.3(b) qualification standards do not bar it. Per the opinion, the analysis turns on the site's disclosing that it exists solely to solicit clients for the participating lawyers, and the opinion expressly leaves open what disclosures must be made to a prospective client who contacts the site.

Common questions

Q: Is a law firm's lead-generating marketing website a "lawyer referral service" under the Michigan rules?

A: Per the opinion, no. The Committee concluded the described program is overt marketing promoting a defined group of affiliated lawyers, not a lawyer referral service under MRPC 6.3(b).

Q: Does a lawyer violate the referral rules by being listed on such a site for free?

A: No. The opinion concludes participation is not prohibited where the lawyer pays nothing to join and the arrangement is joint advertising disclosed as soliciting clients for the participating lawyers.

Q: What makes the listing permissible under MRPC 6.3(c)?

A: The opinion relies on MRPC 6.3(c), which exempts lawyers jointly advertising in a manner that discloses the advertising is solely to solicit clients for themselves from the MRPC 6.3(b) requirements.

Q: Does the opinion resolve what the firm must tell callers about the arrangement?

A: No. The Committee stated that what disclosures must be made to a prospective client about the arrangement is beyond the scope of the opinion.

Background and rules framework

The opinion interprets MRPC 7.2(c)(ii) / Model Rule 7.2 (paying the usual charges of a qualifying referral service) and MRPC 6.3(b) and (c) / a Michigan rule adapted from the ABA's 1993 Model Rules Governing Lawyer Referral and Information Services. The Committee read the two rules together and concluded the MRPC 6.3(c) joint-advertising exception controls.

Citations and references

Rules of Professional Conduct:

• MRPC 7.2(c)(ii) / Model Rule 7.2 (payment for recommending services; referral-service exception)
• MRPC 6.3(b) / qualification standards for a lawyer referral service
• MRPC 6.3(c) / joint-advertising exception to MRPC 6.3(b)

Other opinions cited:

• ABA Informal Opinion 85-1510: participation in a for-profit referral service without paying a fee
• Colorado State Bar Ethics Op. 106 (1999): similar rule applied

See also

• Mich Ethics Op. RI-343: Fixed-Fee Insurance Defense and Fee Disclosure
• Mich Ethics Op. RI-361: Lawyer-Candidate Appearing Before the Opposing Judge

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1210&Type=6

Original opinion text

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

RI-340

June 8, 2007

SYLLABUS

A lawyer may be listed in a website of a law firm with whom he is not otherwise affiliated as a local lawyer to whom that firm would refer cases, without violating rules pertaining to participation in lawyer referral services, provided that the website discloses that the information provided is solely for the purpose of soliciting clients for the firm and its referral counsel.

References: MRPC 7.2(c)(ii), 6.3(b), 6.3(c)

TEXT

A lawyer has inquired whether he may accept the invitation of an out-of-state law firm to be listed in its website, maintained to further the firm's plan to create a comprehensive marketing campaign to develop personal injury case leads on a national basis, as its Michigan attorney. No fee is charged for the website listing, and the Michigan lawyer would have the right to approve the content of the website. Sample material from the website indicates that the law firm is soliciting clients for itself by offering a national network of experienced trial lawyers locally available to the client. Calls from prospective clients would be received by the firm, which would then review the case with the local lawyer. A Michigan case would be referred to the Michigan attorney after he and the firm agreed to a fee sharing arrangement. The question posed to the Committee is whether the arrangement would violate the Michigan Rules of Professional Conduct ("MRPC") as they apply to participation in a lawyer referral service.[1]

The Michigan Rules address the subject of participation in a lawyer referral service twice – once in MRPC 6.3, which establishes requirements of a lawyer referral service in which a lawyer may participate, and again in the context of lawyer payment for referrals, in MRPC 7.2. Rule 7.2(c)(ii) of the Michigan Rules[2] provides:

(c) A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may:

(ii) participate in, and pay the usual charges of, a not-for-profit lawyer referral service or other legal service organization that satisfies the requirements of Rule 6.3(b) . . . .

The subject of lawyer referral service is addressed only in Rule 7.2(b)(2) of the Model Rules of Professional Conduct[3] on lawyer advertising. The Model Rule and most state rules apply only to the matter of payment of charges for advertising or referral, not to participation in a program. Under the counterpart Model Rule, a lawyer would be able to participate in a lawyer referral service that is for profit if the lawyer does not pay a fee for the privilege of participating.[4] Unlike the Model Rule, however, MRPC 7.2(c)(ii) has an additional restriction. The lawyer's right to "participate" in the referral service is conditioned on the service's meeting the requirements of MRPC 6.3(b). Whether the referral arrangement meets the requirements of MRPC 6.3(b) must be considered if either MRPC 7.2 or MRPC 6.3(b) is to be read as containing an implicit prohibition that a lawyer may not participate in lawyer referral service that does not meet the requirements of Rule 6.3(b).

MRPC 6.3(b) appears to present an adaptation of Model Supreme Court Rules Governing Lawyer Referral and Information Services ("LRIS Rules"), adopted by the American Bar Association in 1993,[5] which were created to establish guidelines for qualifications of lawyer referral services. Although comments accompanied the LRIS Rules as drafted by the ABA's Standing Committee on Lawyer Referral and Information Services, there are no comments to the Michigan Rule for interpretive guidance.

Rule 6.3(b) begins with substantively the same terminology as Rule 7.2(c)(ii):

(b) A lawyer may participate in and pay the usual charges of a not-for-profit lawyer referral service that recommends legal services to the public . . . .

but continues by conditioning that permission with the requirement that the service meet standards of qualification as a lawyer referral service set out in five subsections that follow. An exhaustive discussion of these standards is unnecessary because it is clear that the proposed marketing arrangement does not meet any of them.

We are not aware of any rule that prohibits a lawyer's participating in a lawyer referral service that did not meet the standards for qualification expressed in MRPC 6.3(b), other than Rule 7.2(c)(ii). Clearly, the lawyer could not pay charges to belong to such a referral service, or give anything of value, for participation in such a service. In interpreting the MRPC, we are reluctant to imply rules that are unstated, even though the purpose of a "permissive" rule, such as 6.3(b), becomes illusory as a result. Standing alone, Rule 6.3(b) contains no prohibitions, only a limited permission. MRPC 7.2(c) begins with a prohibition against giving something of value for a recommendation for services, followed by exceptions. Merely because the exception states that a lawyer may participate in a not-for-profit referral service does not require us to conclude that participation in a for profit referral arrangement, or a referral service that did not meet the standards of MRPC 6.3(b), in and of itself would violate a prohibition against "giving something of value" for a recommendation.

The Comment to MRPC 7.2 recognizes that a lawyer is allowed to pay for advertising otherwise permitted by the rules, and to divide fees as permitted under Rule 1.5(e). Even if we were to conclude that MRPC 6.3(b) had an independent and implied prohibition on the conduct in question here, MRPC 6.3(c) provides that the requirements of (b) do not apply to "lawyers jointly advertising their services in a manner that discloses that such advertising is solely to solicit clients for themselves."[6] We believe that this rule expressly permits the arrangement described in the inquiry.

The Michigan Rules do not provide a definition of a lawyer referral service. Rule 6.3(c) itself, in declaring when the requirements of subrule (b) do not apply, obfuscates the meaning by including individual lawyer to lawyer referrals and lawyer joint advertising along with prepaid legal plans and pro bono legal assistance programs. The implication is that any information about a lawyer from a person other than the lawyer himself is a lawyer referral service. The MRPC, as do the Model Rules, seeks to prevent abuse that can arise when a subjective referral is made to appear as objective and public spirited. For this reason, Rule 6.3(b) seeks to identify the characteristics of a public service operating in the public interest.

We do not believe that the marketing program described properly can be considered a lawyer referral service at all. It is overtly marketing, and promotes services by a defined group of lawyers associated with the sponsoring law firm. Participation in it is not properly the subject of MRPC 6.3(b) or 7.2(c)(ii), either expressly or impliedly.

[1] The inquiry from the lawyer recognizes the applicability of MRPC 7.1, relating to the content of lawyer advertising, and MRPC 1.5(e), relating to division of fees between lawyers not in the same firm. In addition to these concerns and the ones raised by the inquiry, the proposed arrangement implicates other Rules. The website may not imply that the Michigan lawyer practices in partnership or other organization with the sponsoring firm. MRPC 7.5(d). The information received when a prospective client calls the website contact is confidential, and subject to MRPC 1.6. Although the client may believe it has called the Michigan lawyer, in fact it is speaking with the sponsoring firm. The proposed agreement between the Michigan lawyer and the sponsoring firm disavows any partnership or other relationship. What disclosures must be made to the prospective client regarding the arrangement is beyond the scope of this opinion.

[2] The Michigan Rule appearing at 7.2(c)(ii) is the counterpart of Model Rule 7.2(b)(2), but with the significant difference that the Michigan rule purports to regulate participation of the lawyer in a referral service.

[3] American Bar Association, 2006. The Model Rule does not purport to address the lawyer's right to participate in a lawyer referral service, but permits the lawyer to "pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service."

[4] ABA Informal Opinion 85-1510 (March 26, 1985). See also Colorado State Bar Ethics Op. 106 (June 6, 1999) applying a similar rule.

[5] These Rules may be found at http://www.abanet.org/legalservices/lris/modelrules.html. Except to the extent adapted as a part of MRPC 6.3(b), these Rules have not been adopted in Michigan. These Rules do not regulate or differentiate based on whether a lawyer referral service is for profit or not for profit, but focus on whether the service is "qualified".

[6] MRPC 6.3(c)(3).