Can a lawyer serve on a bar lawyer referral service committee and still receive referrals from that service?

Plain-English summary

The Committee on Lawyer Referral Service proposed to delete a plan provision that barred any committee member (or a lawyer associated with the member) from receiving referrals during the member's term. The question was whether a committee member could serve and still receive referrals where the staff, not the committee, assigns cases to an open panel on a rotating basis.

The committee began from N.Y. State 426 (1976), which had held it improper to refer a matter to a lawyer associated with the administration of a referral service or to that lawyer's firm. That bar rested on DR 2-103(C) and the view that such a referral is not "bona fide" within the exception in DR 2-103(C)(1), and it also implicated the conflict provision DR 5-101(A) and Canon 9's prohibition on the appearance of impropriety (here, self-dealing). The committee read N.Y. State 426 as directed at lawyers involved in the actual administration of the service.

Under the proposed plan, the committee would set broad organizational policy while the staff in Albany interviewed callers and assigned referrals to participant-members on a rotating basis. The committee held that where the committee isolates itself from the actual assignment of cases, N.Y. State 426 does not apply. It analogized the committee's role to that of a board of directors implicitly approved in N.Y. State 490, which counseled that a board should be isolated, to the extent practicable, from the day-to-day handling of specific cases. Because the staff makes the rotating assignments to an open panel, the committee found the members too remote to influence referrals to themselves. The question was answered in the affirmative, and the committee noted it did not rely on the post-Bates changes to EC 2-8.

Currency note

This opinion was issued in 1988, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (referral services are now addressed at Rule 7.2 and personal-interest conflicts at Rule 1.7). 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 Treat this page as historical context, not current guidance.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: Can a lawyer referral committee member receive referrals from the same service?

A: Yes, in the right structure. The committee held a member may receive referrals where the committee sets only broad policy and the staff assigns cases to an open panel on a rotating basis, leaving the member too remote from assignment to create self-dealing.

Q: What earlier rule did the opinion distinguish?

A: N.Y. State 426 (1976), which barred referrals to a lawyer involved in administering the service. The committee read that bar as aimed at lawyers who actually administer case assignment, not at committee members who set policy only.

Q: What makes the difference between proper and improper here?

A: Separation from case assignment. The committee held the controlling factor is that the staff, not the committee, assigns the rotating referrals, so the committee is isolated from the day-to-day handling of specific cases.

Background and rules framework

The opinion interpreted DR 2-103(C) and its "bona fide" referral exception in DR 2-103(C)(1), the personal-interest conflict provision DR 5-101(A), and Canon 9. It analogized to the board-isolation principle of N.Y. State 490 and noted EC 2-8 as background. The closest current Model Rule analogues are Rule 7.2 (referrals and referral services) and Rule 1.7 (personal-interest conflicts).

Citations and references

Rules of Professional Conduct:

• MR 7.2 (referrals; lawyer referral services)
• MR 1.7 (personal-interest conflicts)
• NY DR 2-103(C), 2-103(C)(1); DR 5-101(A); EC 2-8; Canon 9

Other opinions cited:

• N.Y. State 426 (1976): bar on referrals to a lawyer who administers the referral service
• N.Y. State 490 (1978): a policy-setting board should be isolated from the day-to-day handling of cases
• Arizona Op. 76-13 (1976): accord on rotating open-panel referrals

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977): noted; the committee did not rely on the post-Bates changes to EC 2-8

See also

• NY State Bar Op. 651: Bar referral service fee and percentage remittance
• NY State Bar Op. 739: Lawyer referral service fees in domestic relations matters
• NY State Bar Op. 597: Advertising service plans vs. a referral service

Source

• Landing page: https://nysba.org/opinion-590/