Can a North Carolina lawyer agree to be on a doctor's or other professional's list of recommended lawyers given to patients or clients?

Plain-English summary

A doctor who treats car-accident patients wants to give interested patients a list of lawyers, and asks a personal-injury lawyer she has worked with whether he may be on it. The opinion concludes the lawyer may agree to be on the list, provided there is no quid pro quo exchange for recommending the lawyer's services and the lawyer has neither instructed the doctor to improperly solicit patients nor understands that she will. Rule 7.2(b) bars a lawyer from giving anything of value for recommending the lawyer's services, and 2006 FEO 7 treats a lawyer's offer to refer clients to a professional in exchange for the professional's referrals (rather than based on the professional's independent assessment) as an improper quid pro quo. Drawing on 2007 FEO 4, the opinion analogizes the list to passively providing business cards or brochures to an allied professional for voluntary collection by interested patients, which lacks the potential for abuse or overreaching, so long as the lawyer does not understand the professional will solicit in person. The lawyer also may not accomplish through the doctor's acts what the lawyer could not do himself (Rule 8.4(a)).

The opinion then concludes the lawyer may also initiate the conversation with the doctor to inform her of his practice so she might include him on the list, subject to the same conditions (no improper solicitation, no quid pro quo). But the analysis changes if the lawyer learns the doctor is refusing to treat patients unless they hire a lawyer from her list: that creates duress and coercion that Rule 7.3(c)(2) would forbid the lawyer from doing himself, so he cannot do it through the doctor (Rule 8.4(a)). On learning of such conduct, the lawyer must immediately correct it or request removal from the list, comparable to the duty under Rule 7.4 to terminate a relationship with an intermediary organization that will not conform its conduct to the rules.

In practice

Under this opinion, a North Carolina lawyer may agree to be listed on an allied professional's roster of recommended lawyers, and may initiate the conversation that leads to the listing, if there is no quid pro quo exchange of referrals and the lawyer neither instructs nor expects the professional to engage in improper solicitation (Rules 7.2(b), 7.3, 8.4(a)). The opinion holds that providing the professional with passive information for voluntary collection by interested patients is permissible (2007 FEO 4), but if the lawyer learns the professional is coercing patients, such as conditioning treatment on hiring a listed lawyer, the conduct violates Rule 7.3(c)(2) and the lawyer may not accomplish it through the professional's acts (Rule 8.4(a)); the lawyer must then immediately correct the conduct or request removal from the list.

Common questions

Q: Can a North Carolina lawyer be on a doctor's list of recommended lawyers given to patients?

A: Yes. Opinion #1 concludes the lawyer may agree if there is no quid pro quo exchange for the recommendation and the lawyer does not instruct or expect the doctor to improperly solicit patients; the list is treated like passively providing business cards or brochures for voluntary collection (2007 FEO 4).

Q: Can the lawyer approach the doctor to ask to be added to the list?

A: Yes. Opinion #2 concludes the lawyer may initiate and pursue the conversation to inform the doctor of his practice for inclusion on the list, subject to the same conditions: no improper solicitation through the doctor and no quid pro quo exchange.

Q: Is it a problem if the lawyer refers clients to the doctor in return?

A: It can be. Opinion #1 explains that offering to refer clients to the professional in exchange for the professional's referrals, rather than based on the professional's independent assessment of the lawyer, is an improper quid pro quo under Rule 7.2(b) and 2006 FEO 7.

Q: What if the doctor starts pressuring patients to hire a lawyer from the list?

A: The lawyer must act. Opinion #3 concludes that refusing treatment unless a patient hires a listed lawyer is coercion and duress that Rule 7.3(c)(2) bars; the lawyer cannot do through the doctor what he could not do himself (Rule 8.4(a)), and must immediately correct the conduct or request removal from the list.

Background and rules framework

The opinion interprets North Carolina Rule 7.2(b) (a lawyer shall not give anything of value to a person for recommending the lawyer's services), Rule 7.3 (solicitation of clients, including the 7.3(a) definition, the 7.3(b) bar on live person-to-person solicitation for pecuniary gain, and the 7.3(c)(2) bar on solicitation involving coercion, duress, or harassment), Rule 8.4(a) (violating the rules through the acts of another), and Rule 7.4 (the duty to correct or terminate a relationship with a noncompliant intermediary organization). These correspond to ABA Model Rules 7.2, 7.3, and 8.4. The opinion relies on prior NC opinions 2006 FEO 7, 2007 FEO 4, and RPC 57.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.2 / NC Rule 7.2(b) (no compensation for recommending the lawyer)
• Model Rule 7.3 / NC Rule 7.3(a), (b), (c)(2) (solicitation; coercion, duress, harassment)
• Model Rule 8.4 / NC Rule 8.4(a) (violating the rules through the acts of another)
• NC Rule 7.4 (intermediary organizations; duty to correct or withdraw, by analogy)

Other opinions cited:

• 2006 FEO 7 (referral-for-referral exchange is an improper quid pro quo)
• 2007 FEO 4 (passively providing cards or brochures to an allied professional)
• RPC 57

See also

• ABA Formal Op. 465: Deal-of-the-Day Marketing Programs
• ABA Formal Op. 474: Referral Fees and Conflicts of Interest

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2022-formal-ethics-opinion-3/

Original opinion text

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

Inquiry #1:

Doctor works at a local medical office. Doctor often treats patients who suffered injuries resulting from car accidents. On occasion, these patients ask Doctor if Doctor knows of any lawyers who could represent the patient regarding their involvement in the car accident. Doctor has decided to create and offer to patients a list of lawyers to assist the patient in identifying and choosing a lawyer.

Lawyer focuses his practice on personal injury matters. Doctor has previously worked with patients represented by Lawyer and believes Lawyer can provide reliable representation to patients. Doctor has asked Lawyer if she may recommend Lawyer to her patients by including Lawyer on her list of lawyers.

May Lawyer agree to his inclusion on Doctor’s list of lawyers?

Opinion #1:

Yes, provided that there is no quid pro quo exchange for recommending Lawyer’s services, and provided that Lawyer has not instructed Doctor to engage in improper solicitation of Doctor’s patients for legal services offered by Lawyer and Lawyer does not understand Doctor to engage in improper solicitation.

Rule 7.2 prohibits a lawyer from compensating, giving, or promising anything of value to a person for recommending the lawyer’s services. Rule 7.2(b); see 2006 FEO 7; 2007 FEO 4. A lawyer offering to refer a client to an allied professional in exchange for a referral from the professional to the lawyer’s practice, rather than based on the professional’s independent analysis of the lawyer’s qualifications, constitutes an improper quid pro quo. 2006 FEO 7.

Rule 7.3 defines solicitation as “a communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services.” Rule 7.3(a). Rule 7.3(b) prohibits a lawyer from soliciting professional employment “by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain[.]” A lawyer may not engage in conduct that would constitute a violation of the Rules of Professional Conduct through the acts of another. Rule 8.4(a).

In 2007 FEO 4, this committee concluded that a lawyer may provide business cards or a brochure containing information about the lawyer’s practice to an allied professional for distribution to the professional’s patients/clients so long as the lawyer does not understand the professional will engage in in-person solicitation on the lawyer’s behalf. In reaching this conclusion, the committee cited the absence of “[t]he potential for abuse or overreaching” when a lawyer passively provides information about his practice to an allied professional for voluntary collection by potentially interested clients/patients of the professional. Id.

The same can be said for the present situation. Doctor has described the proposal as a list of potential legal service providers to be given to interested patients who are in need of and/or seeking legal services. Lawyer has not instructed Doctor to solicit business from Doctor’s patients for Lawyer, and Lawyer has no reason to expect that Doctor will engage in improper solicitation of Doctor’s patients. Furthermore, Lawyer’s inclusion on the list is not in exchange for referrals to Doctor’s practice in the manner of an improper quid pro quo. See RPC 57.

Inquiry #2:

May Lawyer initiate and pursue a conversation with Doctor to inform Doctor of Lawyer’s practice and services for the purpose of having Doctor provide her patients with Lawyer’s information or place Lawyer on Doctor’s “recommended lawyers” list to be given to patients?

Opinion #2:

Yes, provided that Lawyer does not instruct Doctor to engage in improper solicitation of Doctor’s patients for legal services offered by Lawyer and Lawyer does not understand Doctor to engage in improper solicitation, and provided that there is no quid pro quo exchange for recommending Lawyer’s services. See Opinion #1.

Inquiry #3:

Same scenario as Inquiry #1, except Lawyer has learned that, after agreeing to be included in Doctor’s list of lawyers, Doctor is refusing to treat patients unless the patient has legal representation from someone on Doctor’s list.

May Lawyer continue his inclusion in Doctor’s list of lawyers?

Opinion #3:

No. Rule 7.3(c) prohibits a lawyer from soliciting professional employment if “the solicitation involves coercion, duress, or harassment.” Rule 7.3(c)(2). In this scenario, Lawyer has learned that Doctor is creating duress for her patients and coercing patients into obtaining legal representation from Lawyer by refusing to provide medical treatment unless the patient obtains legal representation. Lawyer could not engage in such conduct himself, and therefore cannot engage in conduct through the actions of Doctor with whom Lawyer has associated for the purpose of disseminating information about Lawyer’s practice and legal services. Rule 8.4(a). Upon learning of Doctor’s conduct, and given the nature of Doctor’s conduct, Lawyer must immediately correct Doctor’s conduct or request his removal from Doctor’s list. Compare Rule 7.4 (requiring a lawyer to terminate his relationship with an intermediary organization upon learning the organization failed to comport its conduct to the requirements in Rule 7.4 despite the lawyer’s attempt to correct the conduct).