Can a lawyer join a private divorce-mediation referral service that advertises and routes callers to mediators by location?

Plain-English summary

A lawyer proposed to join a divorce-mediation service that would advertise on television and in the Yellow Pages, take calls on an 800 number, and route each caller to a participating mediator based on geographic location; the mediators, both lawyers and nonlawyers, would be co-shareholders in the service. The committee first decided this was a "referral service" governed by DR 2-103(C), not "group advertising" governed by DR 2-101. Following N.Y. State 597 (1989), it reasoned that because the caller does not choose a particular mediator but is given a name based on location, the arrangement is more in the nature of a referral service than advertising by an individual lawyer.

The decisive question was whether divorce mediation by a lawyer is a "lawyer's services" under DR 2-103(C). The committee surveyed a split of authority, with some committees treating lawyer-mediation as the practice of law (because the lawyer exercises legal judgment on property division, support, and custody) and others treating it as a non-legal service the lawyer can market freely. The committee concluded that, on the present state of knowledge, a lawyer who serves as a mediator should be presumed to be rendering a legal service. It reasoned that participants cannot be kept unaware that the mediator is a lawyer, will reasonably give added weight to a lawyer-mediator's views on legal questions, and that disclaimers could not erase those expectations. The committee tied this to its prior line treating various lawyer-provided services (small-claims representation, tax-deduction help, financial planning, tax return preparation) as the practice of law under DR 3-103(A).

Because lawyer-mediation involves the use of the lawyer's services, DR 2-103(C) applies. The committee explained that the rule protects people seeking legal help from being misled into thinking a referral reflects a disinterested endorsement, a concern especially acute where the very lawyers receiving the referrals operate the service. Since the proposed service was not bar-approved, it did not fall within the DR 2-103(C)(1) exception, and the committee answered the question in the negative.

Currency note

This opinion was issued in 1996, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. 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: Was the service treated as advertising or as a referral service?

A: The opinion concluded it was a referral service under DR 2-103(C). Because callers were routed to a mediator by location rather than choosing a named lawyer, it was more like a referral service than group advertising.

Q: Is divorce mediation by a lawyer the practice of law?

A: The opinion concluded it should be presumed to be a legal service. Participants will learn the mediator is a lawyer and reasonably weight the lawyer's views on legal issues, so the service entails the use of the lawyer's services.

Q: Could the lawyer join if the service were bar-approved?

A: The opinion noted DR 2-103(C)(1) permits requesting referrals from a bar-approved lawyer referral service. The proposed service was not bar-approved, so it did not qualify.

Background and rules framework

The opinion interpreted DR 2-103(C) (no requesting recommendations of the lawyer's services except through permitted advertising or a bar-approved referral service) and DR 2-101 (advertising) of New York's former Code, with reference to DR 3-103(A) (lawyer-nonlawyer partnerships). The Model Rule analogues are Rule 7.2 (advertising and referral arrangements) and Rule 7.3 (solicitation). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 7.2 (advertising; referral arrangements)
• MR 7.3 (solicitation of clients)
• NY DR 2-101; DR 2-103(C)

Cases:

• Poly Software Int'l, Inc. v. Su, 880 F. Supp. 1487 (D. Utah 1995), lawyer-mediator subject to former-client disqualification

Other opinions cited:

• N.Y. State 597 (1989): referral service versus group advertising
• N.Y. State 662 (1994): a lawyer cannot cure the problem by concealing attorney status
• Maryland 93-10 (1993): marketing of mediation not subject to solicitation rules (contrary view)

See also

• NY State Bar Op. 1236: Divorce mediation, limited scope and remote practice
• NY State Bar Op. 1222: Lawyer-nonlawyer co-ownership of a mediation business
• NY State Bar Op. 739: Lawyer referral service fees in domestic relations

Source

• Landing page: https://nysba.org/opinion-678/