Can a lawyer join a for-profit referral service that advertises for clients, screens callers, and refers them to paying attorneys?
Ohio BPC Opinion 91-007: Participation in a For-Profit Lawyer Referral and Joint Advertising Service
Short answer: The opinion concluded that an attorney should not participate in a for-profit referral service that jointly advertises, screens callers, and refers them to attorneys who have paid for the service.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
The Board responded to several requests about for-profit referral services that mass-advertise an 800 number in fields like workers' compensation, personal injury, drunk driving, and bankruptcy, take facts and screen callers over the phone, and refer callers to an attorney who has purchased a referral rotation. The services charged participating lawyers for enrollment, production, administration, and monthly advertising, and promised a number of screened referrals each month, often using names implying a functioning association of lawyers.
The opinion applied two sets of rules. Under DR 2-101, lawyer advertising must not be false, fraudulent, or misleading, an organizational name and message must not mislead the public, and DR 2-101(D) requires radio or television advertising to be pre-recorded, approved for broadcast by the lawyer, and retained. Under DR 2-103(B), a lawyer may not compensate a person or organization to recommend or secure employment unless it is a reasonable fee charged by an organization approved under DR 2-103(D) (such as legal aid, military legal assistance, bar-sponsored referral services, and certain bona fide organizations). The Board distinguished its earlier opinions approving services that merely give callers a lawyer's name without recommending or endorsing the lawyer (Ops. 89-30 and 88-27), and aligned with the Cleveland Bar Association's view that a lawyer may not join a private referral service that goes beyond a ministerial function. Because the described services recommend, promote, and secure employment, the Board concluded that paying them violates DR 2-103(B), that they are not approved organizations under DR 2-103(D), and that they do not conform to DR 2-101(D) because the attorney does not control the message. Concluding the advertising may also be misleading under DR 2-101(A), the Board concluded Ohio lawyers should not participate in such referral schemes.
Currency note
The Board's status list flags this opinion as Not Current due to subsequent rule amendments to DR 2-103 (effective December 1, 1995) and DR 2-101 (effective January 1, 1993 and August 16, 1993). This opinion issued in 1991 under Ohio's former Code of Professional Responsibility (superseded by the Ohio Rules of Professional Conduct effective February 1, 2007). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct before relying on any specific rule mentioned here.
Common questions
Q: Can a lawyer pay to join a private referral service that screens and refers clients?
A: Under this opinion, no, where the service goes beyond a ministerial function. The Board concluded that paying such a service to recommend or secure employment violates DR 2-103(B) and that the service is not an approved organization under DR 2-103(D).
Q: What kind of referral service did the Board treat as acceptable?
A: The opinion distinguished services that merely give a caller the name of a participating lawyer without recommending or endorsing the lawyer, citing Ops. 89-30 (injury helpline) and 88-27 (Talking Yellow Pages).
Q: Why did the joint advertising itself raise a problem?
A: The opinion concluded the services did not conform to DR 2-101(D) because the lawyer did not control the broadcast message, and that names implying an association of caring, competent lawyers may be misleading under DR 2-101(A).
Background and rules framework
The opinion interprets the former Code of Professional Responsibility DR 2-101(A) (false or misleading advertising), DR 2-101(D) (lawyer approval and retention of broadcast advertising), DR 2-103(B) (compensating others to recommend or secure employment), and DR 2-103(D) (organizations approved to make referrals).
Citations and references
Rules of Professional Responsibility (Ohio, former):
- DR 2-101(A), false or misleading advertising
- DR 2-101(D), lawyer approval and retention of broadcast advertising
- DR 2-103(B), compensating others to recommend or secure employment
- DR 2-103(D), organizations approved to make referrals
Other opinions cited:
- Ohio Board, Op. 89-30 (1989): injury helpline merely giving callers names
- Ohio Board, Op. 88-27 (1988): Talking Yellow Pages
- Cleveland Bar Ass'n, Op. 90-2 (1990): private referral services beyond a ministerial function
- Alabama State Bar, Op. RO-90-49 (A) & (B): misleading associational names
See also
- Ohio BPC Op. 1988-027: Advertising in the Talking Yellow Pages
- Ohio BPC Op. 1988-009: Soliciting Referrals From Non-Bar Organizations
- Ohio BPC Op. 1989-030: Group Legal Television Advertising
- Ohio BPC Op. 1989-008: Group Legal Service Plan for a Teachers Association
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-91-007.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 91-7
Issued April 12, 1991
[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.]
[Not current-subsequent rule amendments to DR 2-103, eff. Dec. 1, 1995; DR 2-101, eff. Jan. 1, 1993 and Aug. 16, 1993.]
SYLLABUS: An attorney should not participate in a lawyer referral service that provides joint advertising of legal services to generate potential clients who are then screened and referred to attorneys who have paid for the service. Participation is unethical because the attorney compensates the services in violation of DR 2-103 (B) and such referral services are not approved organizations under DR 2-103 (D). It is also unethical if the participating attorney has not approved the advertisement prior to broadcast pursuant to DR 2-101 (D) and if the communication is misleading in violation of DR 2-101 (A).
OPINION: We have before us a number of requests for advisory opinions on whether it is ethical for an attorney to participate in a lawyer referral service that provides joint advertising of legal services to generate potential clients who are then screened and referred to attorneys who have paid for the service.
Ohio lawyers have notified the Board that they have been solicited by referral services utilizing various names but similar marketing and referral schemes. The services are usually marketed and sold to attorneys whose practices involve workers' compensation, personal injury, drunk driving or bankruptcy matters. The names of the services usually imply a functioning association of lawyers practicing in a specific area of law.
Mass advertising techniques are used to solicit clients injured or experiencing particular legal problems. The services advertise an 800 telephone number within a specific market. When a potential client calls the 800 number, facts are taken over the phone, a screening process occurs, and the caller is referred to an attorney who practices in the area related to the caller's problem and who has purchased that referral rotation. The telephone services operate 24 hours a day, seven days a week. Fees paid by the lawyers to the referral services cover enrollment, production, administration and monthly advertising. The referral services promise participating lawyers that they will receive a certain number of quality, screened referrals each month.
The Code of Professional Responsibility (Code), in permitting lawyers to advertise, requires compliance with the provisions of DR 2-101. While it is true that a lawyer is permitted to advertise fields of interest and solicit clients with particular legal needs, he or she must take care to insure that the advertising is in accord with DR 2-101 (A). There may be no false, fraudulent or misleading advertising. If a lawyer seeks to join others in a cooperative venture, the use of any organizational name and message must not mislead the public. Nor should the content of the advertising be false or misleading. In addition, DR 2-101 (D) specifically provides that "[i]f the advertisement is communicated to the public over radio or television it shall be pre-recorded, approved for broadcast by the lawyer, and a recording of the actual transmission shall be retained by the lawyer."
The Code also contains provisions regarding the use of referral services and organizations. DR 2-103 (B) provides that a lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client unless it is a reasonable fee charged by an approved organization listed in DR 2-103 (D). Organizations approved under DR 2-103 (D) are: legal aid or public defender offices; military legal assistance offices; lawyer referral services operated, sponsored or approved by a bar association; and bona fide organizations meeting certain conditions.
This Board has previously stated that it is ethical to participate in a referral service where the service merely provides the caller with the name of a participating lawyer and does not act as the lawyer's agent or recommend or endorse the lawyer's employment. Ohio SupCt, Op. 89-30 (1989) The Board concluded that a lawyer could become a member of an "injury helpline," because toll-free operators merely gave callers the names of lawyers who purchased exclusive rights in a geographical area. Id. Similarly in Opinion 88-27, the Board stated that a lawyer could become a member of the Talking Yellow Pages, because a computer randomly pulled up the names of attorneys, thereby in essence eliminating the risk involved in allowing a person to select and thus recommend an attorney. Ohio SupCt, Op. 88-27 (1988).
Recently, the Cleveland Bar Association Professional Ethics Committee advised that a lawyer may not participate in private lawyer-referral services that go beyond a ministerial function of simply placing callers in contact with participating lawyers. Cleveland Bar Ass'n, Op. 90-2 (1990). Often such services make legal determinations of the callers' claims and refer bona fide claims to participating lawyers. The rationale was that the referral system violated DR 2-103 (B) and (D) by recommending, promoting, and securing employment for participating lawyers. Id.
The referral services, at issue in this opinion, appear to go beyond the mere function of placing callers in contact with participating attorneys and thus do not enjoy the protection offered by this Board's previous opinions. As proposed, the advertising services result in referral mechanism for the assignment, recommending and securing of services of a lawyer for particular kinds of legal problems.
Ohio lawyers violate DR 2-103 (B) when they pay a private organization for a referral or recommendation unless it is an approved lawyer referral organization. The referral services do not fall within any of the categories of approved organizations set forth in DR 2-103 (D). Further, the programs at issue do not conform to DR 2-101 (D) as there is no control by the attorney over the individual message that is communicated.
Further, the Board cautions Ohio lawyers to closely examine and investigate any program or marketing scheme or service to insure that it does not mislead consumers about any association, membership, nature of the legal services or costs involved, in violation of DR 2-101. The Alabama Disciplinary Commission in Ethics Opinion RO-90-49 (A) & (B) directly captured this ethical concern when it stated the following:
The names of these groups were not chosen by accident. Concepts such as strength through numbers, group support, focused legal skills and the like are all a part of the intended subliminal message conveyed by the names of these programs, and that makes the messages misleading.
The group concept, or associational implication, is valid only in a limited, economic sense. There are no other meaningful associational characteristics. The consuming public is lead [sic] to believe that, by calling a WATS number mentioned in a very slick, professional ad, they are being plugged into a network of caring, competent, highly experienced lawyers, selected and approved by some group or entity and presented to the public wearing the mantle of "association". In fact, few, if any, of these assumptions are justified, but the public has no way of knowing this from the information provided.
Alabama State Bar, Op. RO-90-49 (A) & (B).
Thus, prior to participation the lawyer must assure himself that the advertising, taken as a whole, is not false or misleading. DR 2-101 (A). We believe the proposed advertising, marketing and referral services may be misleading. In conclusion, because such services appear to violate DR 2-101 (D), DR 2-103 (B), (D) and DR 2-101 (A), Ohio lawyers should not participate in such referral schemes.
This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.