Can an Oregon lawyer own and run a for-profit lawyer-referral service, and can that service give legal advice while screening callers?

Plain-English summary

A lawyer wishes to open a for-profit lawyer-referral service available to the public, incorporated as an independent entity that the lawyer solely owns, advertised in local media, and operated out of the lawyer's own law office. The lawyer and the lawyer's secretary would screen incoming calls and route them to substantive-area panels, and the lawyer might sometimes also give legal advice directly to callers. The opinion answers three questions: may the lawyer own such a service (yes, qualified), may the lawyer manage it (yes, qualified), and may the service provide legal advice while screening inquiries (no).

On ownership, the opinion concludes the rules do not prohibit for-profit lawyer-referral services, but the service must not practice law and must not otherwise assist the lawyer-owner in violating the Oregon Rules of Professional Conduct. On management, a lawyer-owner may provide general management and administration, including hiring and supervising operations staff, and may operate the service at the same premises as the law practice. The opinion cautions, however, that the lawyer-owner should avoid participating in the actual screening of inquiries, because a caller might impart confidential information that creates conflicts with the lawyer's other clients, or might reasonably believe the lawyer had become the caller's lawyer.

The opinion contrasts a proper independent service with In re Fellows, where the disciplined lawyer's "referral service" was not an independent business but merely an assumed business name for the lawyer; that conduct violated Oregon RPC 7.1 and Oregon RPC 8.4(a)(3) and amounted to doing business with a client under Oregon RPC 1.8(a). On the third question, the opinion concludes that because a referral service is not licensed to practice law, it may not give legal advice to the public (ORS 9.160), and under Oregon RPC 5.5(a) a lawyer may not assist the service in delivering legal advice either.

In practice

This opinion (revised 2018) interprets the current Oregon Rules of Professional Conduct, but it is more than five years old, so readers should verify the current rule text before relying on specifics. The opinion holds that a lawyer's ownership and management of a for-profit referral service are permitted only where the service stays out of the practice of law and does not assist the owner in rule violations. Per the opinion, the analysis turns on keeping the referral service distinct from legal practice: a lawyer-owner should not personally screen callers (to avoid receiving confidences and inadvertently forming client relationships), the service cannot give legal advice, and a service that is only an assumed name for the lawyer instead of an independent entity violates Oregon RPC 7.1 and 8.4(a)(3).

Common questions

Q: Can an Oregon lawyer own a for-profit lawyer-referral service?

A: Yes, qualified. The opinion concludes the rules do not prohibit for-profit referral services, provided the service does not practice law and does not assist the lawyer-owner in violating the Oregon Rules of Professional Conduct.

Q: Can the lawyer-owner manage the service and run it from the law office?

A: Yes, qualified. The opinion concludes the owner may provide general management and administration and may operate the service at the same premises as the law practice, but should avoid personally screening incoming inquiries.

Q: Why should the lawyer-owner avoid screening callers?

A: The opinion explains a caller might disclose confidential information that creates conflicts with the lawyer's other clients, or might reasonably believe the lawyer had become the caller's lawyer.

Q: Can the referral service give legal advice to callers?

A: No. The opinion concludes the service is not licensed to practice law and so may not give legal advice (ORS 9.160), and under Oregon RPC 5.5(a) the lawyer may not assist it in doing so.

Background and rules framework

The opinion interprets Oregon RPC 7.1 (communications about a lawyer's services), Oregon RPC 5.5(a) (assisting unauthorized practice), Oregon RPC 1.8(a) (business transactions with a client), and Oregon RPC 8.4(a)(3) (dishonesty), corresponding to Model Rules 7.2, 5.5, 1.8, and 8.4. It reads those rules with ORS 9.160 (only licensed persons may give legal advice) and OEC 503 (who is a client for privilege purposes).

Citations and references

Rules of Professional Conduct:

• Oregon RPC 7.1 / Model Rule 7.2 (communications and advertising about a lawyer's services)
• Oregon RPC 5.5(a) / Model Rule 5.5 (assisting nonlawyer unauthorized practice)
• Oregon RPC 1.8(a) / Model Rule 1.8 (business transactions with a client)
• Oregon RPC 8.4(a)(3) / Model Rule 8.4 (dishonesty, fraud, deceit, or misrepresentation)

Statutes:

• ORS 9.160 (only those licensed to practice law may provide legal advice)
• OEC 503(1)(a) (definition of client for the lawyer-client privilege)

Cases:

• In re Fellows, 9 DB Rptr 197 (1995), referral service that was merely an assumed business name
• In re Weidner, 310 Or 757, 801 P2d 828 (1990), reasonable-expectations test for forming a client relationship

Other opinions cited:

• OSB Formal Ethics Op. No. 2005-138 (legal-aid referral service administration); OSB Formal Ethics Op. No. 2005-137 (nonlawyer joint venture); OSB Formal Ethics Op. No. 2005-87 (unauthorized practice)

See also

• OSB Ethics Op. 2005-138: Legal-Aid Referral and Prospective-Client Conflicts
• OSB Ethics Op. 2005-137: Nonlawyer Joint Venture for an Interactive Legal-Information Service
• OSB Ethics Op. 2005-87: Unauthorized Practice in a Financial and Estate-Planning Service

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-168.pdf