Could a lawyer provide a free consultation to surviving family members as part of a funeral director's package, with the funeral director referring the family to the lawyer?

Currency note

This opinion was issued in 1988 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct (including Ohio Prof. Cond. R. 7.2 on referral arrangements) before relying on any specific rule mentioned here.

Plain-English summary

A lawyer asked whether he could accept a referral for a free consultation for a surviving spouse or surviving children as part of a funeral package offered by a funeral director, with the funeral director referring the family members to the lawyer for the initial consultation. The Board concluded the arrangement was not ethically permissible.

The Board read former DR 2-103(C), which provided that a lawyer "shall not request a person or organization to recommend or promote the use of his services," to prevent the lawyer from providing the free consultation as part of the package, and noted the rule's exceptions did not apply, citing Ohio State Bar Association Informal Opinion 87-8. The Board added that under former EC 2-8 a lawyer should not compensate another person for recommending his services, and reasoned that even without a request, giving an hour of free consultation effectively compensated the funeral director because the legal services added to the value of the funeral package. The Board advised against providing the free consultation as part of the package.

Common questions

Q: Could the lawyer give a free consultation through the funeral package?

A: No. The Board concluded former DR 2-103(C) barred the arrangement, because it amounted to requesting an organization to recommend the lawyer's services, and none of the rule's exceptions applied.

Q: Why did the free hour matter?

A: Under former EC 2-8, a lawyer should not compensate someone for recommending his services. The Board reasoned that the free consultation added value to the funeral package and so effectively compensated the funeral director for the referral.

Background and rules framework

The opinion applies former DR 2-103(C) (requesting recommendations of one's services) and former EC 2-8 (not compensating a third party for recommendations) of the Ohio Code of Professional Responsibility. The current parallel on referral arrangements and giving value for recommendations is Ohio Prof. Cond. R. 7.2 and Model Rule 7.2.

Citations and references

Rules of Professional Conduct:

• Former DR 2-103(C), Ohio Code of Professional Responsibility
• Former EC 2-8, Ohio Code of Professional Responsibility

Other opinions cited:

• Ohio State Bar Assn. Informal Op. 87-8 (1987): the prohibition on requesting recommendations

See also

• Ohio BPC Opinion 1988-009: Soliciting Client Referrals From Non-Bar Organizations
• Ohio BPC Opinion 1988-003: Direct-Mail Solicitation by a Legal Aid Lawyer

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-88-012.pdf

Original opinion text

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

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

OFFICE OF SECRETARY

OPINION 88-012
Issued June 17, 1988

[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]

SYLLABUS: A lawyer may not request a person or organization, other than those listed in DR 2-103(C), to recommend or promote the use of his services or those of his partner or associate, or any other lawyer affiliated with him or his firm, as a private practitioner.

OPINION: We have before us your request for an informal advisory opinion on whether you may ethically accept a referral for a free consultation for a surviving spouse or surviving children as part of a funeral package being offered by a funeral director. The funeral director would refer the surviving family members to you for the initial consultation.

We believe that DR 2-103(C) of the Code of Professional Responsibility prevents you from ethically providing the free consultation as part of a funeral package. The rule states: "[a] lawyer shall not request a person or organization to recommend or promote the use of his services . . . " Code of Professional Responsibility, DR 2-103(C). See also, Ohio St. Bar Assn. Informal Op. 87-8 (1987). The exceptions to the rule do not apply in this case.

In addition, EC 2-8 of the Code states that a lawyer should not compensate another person for recommending his or her services. We believe that even if you do not request the funeral director to recommend your services, by giving one hour of free consultation you are in affect compensating the funeral director for recommending your services because your legal services add to the value of the funeral package.

In conclusion, it is our opinion and you are so advised against providing one hour of free consultation as part of a funeral package. A lawyer should not request a funeral director to promote or recommend the use of his or her services nor compensate someone for recommending his or her services.

This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.