May a bar association operate a lawyer referral service, and may it advertise that service to the public without violating the rules against advertising and stirring up litigation?

Plain-English summary

The committee was asked whether a bar association may operate a lawyer referral service and whether advertising of that service by the bar violates Canons 27 and 28. It held that a bar association may sponsor a referral service provided it is properly organized and meets specified minimum requirements, and that Canon 27 applies to advertising by organized bars but does not prohibit a bar from using advertising to educate the public about the value of obtaining legal services promptly and about the availability of a low-cost initial-consultation referral service.

The committee set out minimum requirements for a compliant referral service: it must be sponsored by an organized bar association; its panel members must be attorneys in good standing in the Oklahoma Bar; all members in the operating area must be allowed to qualify; all advertising must be in the bar's name; referrals must be made impartially; the service must be supervised by a committee of lawyers serving both the public and the bar; it must not operate or appear to operate for the benefit of any group of lawyers; its finances must be controlled by the sponsoring bar; records must be kept and available to members; a minimum initial-consultation fee for a stated duration may be set, with other services charged on the same basis as for any client; and panel members may be required to help finance the service on a reasonable basis.

On advertising, the committee drew a distinction between teaching the public the importance of preventive legal services, which it said promotes the public interest and the profession's standing, and solicitation of employment by or for a particular lawyer, which it said injures the public and degrades the profession. It listed safeguards: the effort should be carried on by the organized bar to avoid any semblance of personal solicitation; its purpose to benefit the public should be made plain; it must in fact be motivated by public benefit and abandoned if it fails to convince the public of that purpose; it should be conducted with the dignity and traditions of the profession; and any articles or publicity should appear in the bar's name without mention of any individual lawyer. The committee concluded that bar advertising of the referral service in newspapers, radio, television, or telephone directories, kept within those limits, does not violate Canon 27.

Currency note

This opinion dates from the era of the Canons of Professional Ethics (it interprets Canons 27 and 28 and refers to the ABA's 1958 Lawyers' Referral Service Handbook), before Oklahoma adopted the Oklahoma Rules of Professional Conduct (1988) and the later Ethics 2000 revisions. The premises about lawyer advertising no longer reflect current law: the United States Supreme Court held in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), that categorical bans on truthful lawyer advertising violate the First Amendment, and lawyer referral services are governed by separate rules today. 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: Could a bar association run a lawyer referral service at all under the Canons?

A: Yes. The committee held a bar association may sponsor a referral service if it is properly organized and meets the minimum requirements the opinion lists, such as impartial referrals, supervision by a lawyer committee, and bar control of the service's finances.

Q: Could the bar advertise the referral service to the public?

A: Yes, within limits. The committee concluded that advertising in the bar's name to educate the public about preventive legal services and the referral service, kept within the stated safeguards, does not violate Canon 27.

Q: Could a referral panel charge for the initial consultation?

A: The committee allowed the supervising committee to set a minimum initial-consultation fee for a stated duration, but said any other legal services a panel member renders must be charged on the same basis as to any other client.

Background and rules framework

The opinion interpreted Canon 27 (advertising and solicitation) and Canon 28 (stirring up litigation) of the Canons of Professional Ethics, adopted in Oklahoma, as applied to a bar-sponsored lawyer referral service and to bar advertising about preventive legal services. It referred to the ABA Standing Committee on Lawyers' Referral Service's Handbook (4th ed. 1958) for organizational guidance. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canon 27 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): bars advertising and solicitation; applied here to advertising by organized bars.
• Canon 28: bars stirring up litigation.

Other opinions cited:

• ABA Committee on Professional Ethics and Grievances Opinions Nos. 13, 31, 54, 92, 121, 179, 205, 227, and 291.
• ABA Standing Committee on Lawyers' Referral Service, Handbook (4th ed. 1958).

See also

• Okla. Bar Ethics Op. 230: Bar association lawyer referral service and advertising
• Okla. Bar Ethics Op. 233: Lawyer listings in telephone directories

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-242/

Original opinion text

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

Education of lay public

INQUIRY

Is the operation of a lawyer referral service by Bar Association ethical and is the advertising of such service by Bar Association in violation of Canon 27 and 28?

1. LAWYERS REFERRAL SERVICE–A Bar Association may sponsor a lawyers reference service providing it is properly organized and meets certain specified minimum requirements.

2. ADVERTISING–Canon 27 is applicable to advertising by organized bars.

3. ADVERTISING–Canon 27 prohibits the solicitation of professional employment through an organized bar by or on behalf of a particular lawyer through advertising mediums.

4. ADVERTISING–Canon 27 does not prohibit the employment of advertising facilities by an organized bar to acquaint the lay public with the desirability of securing legal services promptly when a legal problem arises, and to apprise the public of the maintenance of a Lawyer's Reference Service embracing a low_ cost initial consultation fee for a stated duration, the plan under which it operates, and the availability of service.

5. ADVERTISING–A plan or project to educate the lay public with respect to the benefits of legal services should be carried on by the organized bar with a purpose to give the layman beneficial information, to enable lawyers as a whole to render better professional services, to prevent controversy and litigation, and to enhance the public esteem of the legal profession, and should be carried on in a manner in keeping with the dignity and traditions of the profession.

6. SOLICITATION–Volunteering legal information in paid advertisement which may be construed as a bid for professional employment should not be sanctioned.

7. STIRRING UP LITIGATION–Paid advertisements which may seemingly have for their purpose the encouragement of litigation should not be sponsored by a Bar Association.

8. This Committee does not deem it proper nor does it have the space to discuss the plans and organization of a lawyers referral system and the problems relating thereto and we suggest the Handbook prepared by the Standing Committee on Lawyers' Referral Service of the American Bar Association be consulted in this respect.

In the opinion of the Committee the following minimum requirements must be met in order for a lawyer referral service or panel to comply with ethical requirements of the Oklahoma Bar Association:

a. The service must be sponsored by an organized Bar Association.

b. The panel or members of the referral service must be attorneys in good standing and members of the Oklahoma Bar Association.

c. All members of the Oklahoma Bar Association in the area in which the lawyers referral service is operating must be allowed to qualify and membership on the panel and this area may be limited to the county of its operation.

d. All advertising connected with the panel or service must be sponsored by and in the name of the Bar Association.

e. Referrals must be made on a completely impartial basis.

f. It must be surpervised [sic] by a Committee of lawyers who will see to it that both the public interest and the interest of the bar itself are served.

g. It must not operate or appear to operate for the benefit of any group of lawyers.

h. The financing of the panel must be under the control of the Bar Association setting it up.

i. Records must be kept properly so that both the public and the Bar can be informed of what is being accomplished and must be available to members of the Oklahoma Bar Association at all times.

j. A minimum initial consultation fee for a stated duration may be set by the supervising committee, but any other legal services rendered by the member of the panel to the registrant must be charged on the same basis as to any other client.

k. Members of the panel may be required to assist in financing on a reasonable basis.

This Committee recognizes that there are certain inherent problems which may arise as a result of the operation of the service. These problems must be dealt with as they appear, and we do not propose to lay down in this opinion hard and fast rules, but state that the supervising committee and the sponsoring Bar Association must accept the responsibility for operating the panel or service on an ethical basis.

2. through 7. It will be observed that Canon 27 is directed against the solicitation of professional employment and prohibits advertising therefor. The question, therefore, is whether the canon or the general principles of professional ethics prohibit the employment of advertising facilities to acquaint the layman with the expert service the legal profession is able to render, especially with respect to those matters in which the securing of competent legal advice and assistance in advance of acting will be calculated to insure effectuation of the client's intentions and desires, the protection of his rights and interests, the compliance with essential legal requirements, and the avoidance of future difficulty and perhaps costly litigation. In other words, is it improper to acquaint the lay public with the wisdom and desirability of employing a lawyer to prevent future trouble or controversy, and possibly costly litigation rather than waiting until one is confronted with difficulty, controversy or litigation?

We recognize a distinction between teaching the lay public the importance of securing legal services preventive in character and the solicitation of professional employment by or for a particular lawyer. The former tends to promote the public interest and enhance the public estimation of the profession. The latter is calculated to injure the public and degrade the profession.

The practice of law is affected with a public interest. Society as a whole, as well as the individual client, is interested in the service rendered by the lawyer because it directly affects the maintenance of order and harmony in business and social relations and the due administration of justice. If the public interest is to be best served the profession must merit and have the confidence and respect of the public. One way to obtain that confidence and respect is to render a more useful professional service.

In carrying out a project to educate the lay public with respect to the benefits of preventive legal services, certain possible evils should be carefuly [sic] guarded against.

First, it should be carried on by the organized bar in order that any semblance of personal solicitation will be avoided.

Second, it should be made plain that the purpose is to give the layman beneficial information, to enable lawyers as a whole to render a better professional service, to promote order in society, to prevent controversy and litigation and to enhance the public esteem of the legal profession, the judicial process and the judicial establishments.

Third, it must in fact be motivated by a desire to benefit the lay public and carried out in such a way as to avoid the impression that it is actuated by selfish desire to increase professional employment; and any plan, however well intended, that on trial fails to convince the lay public that the purpose is to benefit the layman and not to promote professional employment should be promptly abandoned.

Fourth, it should be carried on in a manner in keeping with the dignity and traditions of the profession.

In order to overcome any implication that its principal objective is to secure professional employment for members of the Bar rather than performing its obligation to aid and instruct the public, any articles in local publications concerning the service should be in the name of the Bar Association. No such article should be in the name of any individual nor should mention be made of any individual lawyer.

All such articles or publicity in purpose and effect should be for the intelligent guidance of the public and free from suspicion of any selfish motives of the Bar Association and any of its individual members.

It is our conclusion that advertising by a Bar Association of the lawyers reference service either in newspapers, radio, television, or in telephone directories, if kept within the limitations and the objects and purposes above stated, does not violate Canon 27 and no ethical impropriety will result.

See Opinions 13, 31, 54, 92, 121, 179, 205, 227, and 291 of the Committee on Professional Ethics and Grievances of the American Bar Association. Also see Handbook prepared by the Standing Committee on Lawyers Referral Service of the American Bar Association, 4th Edition, 1958.