Can a New Mexico lawyer pay to join a private lawyer referral service that the State Bar has not approved?

Plain-English summary

The Advisory Opinions Committee addressed whether a New Mexico lawyer could participate in the National Legal Referral Service, a privately owned referral service (owned by non-lawyers) that had not been approved by the State Bar. The service charged its lawyer members an initial fee for organizational and advertising costs and then a periodic fixed charge for advertising referrals, a charge that did not vary with the number of referrals or clients a lawyer received.

The opinion concluded that participation violated Rule 2-103 of the New Mexico Code of Professional Responsibility. That rule barred a lawyer from compensating a person or organization to recommend or secure the lawyer's employment, except that a lawyer could pay the usual fees of a referral service operated, sponsored, or approved by a bar association. Because the National Legal Referral Service was not bar-approved, the Committee concluded that a lawyer who used it was in violation of the Code.

The opinion situated the rule in Canon 2, under which a lawyer should help make legal counsel available, balanced against the concern that recommendations of counsel be disinterested and informed and that a lawyer's independent judgment be preserved. The Committee acknowledged that some solicitation activity is constitutionally protected, citing In re Primus and NAACP v. Button, and suggested that the State Bar had the power to adopt reasonable rules for approving private referral services, while expressing doubt that the Bar could ban all non-bar-related private referral services.

Currency note

This opinion was issued in 1983, when New Mexico lawyers were governed by the former New Mexico Code of Professional Responsibility, which the State Bar later replaced with the Rules of Professional Conduct; it also predates the State Bar of New Mexico's November 3, 2008 revisions to those Rules (the New Mexico adoption of the ABA Ethics 2000 changes). The Canons and Disciplinary Rules it cites are no longer in force. Treat this page as historical context, not current guidance.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 New Mexico lawyer pay to join a private referral service in 1983?

A: Not one that the State Bar had not approved. The opinion concluded that paying to participate in the National Legal Referral Service, a privately owned service the Bar had not approved, violated Rule 2-103.

Q: What kind of referral service could a lawyer pay under the rule?

A: The opinion noted that Rule 2-103 permitted a lawyer to request referrals from, and pay the usual fees of, a lawyer referral service operated, sponsored, or approved by a bar association.

Q: Did the Committee say the Bar could approve private referral services?

A: Yes. The opinion concluded the State Bar had the power to adopt reasonable rules and regulations for private referral services, while expressing doubt that the Bar could ban all private referral services not related to the Bar, given that some solicitation activity is constitutionally protected.

Background and rules framework

The opinion interpreted the former New Mexico Code of Professional Responsibility, principally Disciplinary Rule 2-103 (recommendation of professional employment), read together with Rule 2-101 (advertising) and Canon 2 (a lawyer should assist in making legal counsel available). The constitutional discussion drew on In re Primus, 436 U.S. 412 (1978), and NAACP v. Button, 371 U.S. 415 (1963).

Citations and references

Rules of Professional Conduct (former Code):

• Model Code DR 2-103 / NM Code Rule 2-103 (compensation for recommendation of employment; referral services)
• Model Code DR 2-101 / NM Code Rule 2-101 (advertising)
• Model Code Canon 2 (assisting in making legal counsel available)

Cases:

• In re Primus, 436 U.S. 412 (1978), constitutional protection for associational solicitation.
• NAACP v. Button, 371 U.S. 415 (1963), First Amendment protection for litigation-related advocacy.

See also

• NM Ethics Op. 1983-2: Out-of-State Lawyer Consultation Announcement

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1983/1983-1.pdf

Original opinion text

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

Advisory Opinion 1983-1
The question presented to the Advisory Opinions Committee in this instance is whether it is unethical for New Mexico lawyers to use the National Legal Referral Service. The National Legal Referral Service is a private referral service which is not as yet approved by the State Bar of New Mexico. It is the committee's understanding that this particular service is owned by non-lawyers and charges an initial fee to its lawyer members for organizational costs, advertising, production, etc. After this initial charge, its lawyer members are assessed a periodic, fixed charge for advertising referral which is not directly or indirectly determined by the amount of referrals or clients which the lawyers receive.
Rule 2-103 of the New Mexico Code of Professional Responsibility provides in part:
(B) Except as permitted under Rule 2-103(C), a lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client, except that he may pay the usual and reasonable fees or dues charged by any of the organizations listed in Rule 2-103(D).
(C) A lawyer shall not request a person or organization 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, except as authorized in Rule 2-101, and except that:
(1) he may request referrals from a lawyer referral service operated, sponsored or approved by a bar association and may pay its fees incident thereto;
(2) he may cooperate with the legal service activities of any of the offices or organizations enumerated in Rule 2-103(D)(1) through (4) and may perform legal services for those to whom he was recommended by it to do such work if:
(a) the person to whom the recommendation is made is a member or beneficiary of such office or organization; and
(b) the lawyer remains free to exercise his independent professional judgment on behalf of his client.
(D) A lawyer or his partner or associate or any other lawyer affiliated with him or his firm may be recommended, employed or paid by, or may cooperate with, one of the following offices or organizations that promote the use of his services or those of his partner or associate or any other lawyer affiliated with him or his firm if there is no interference with the exercise of independent professional judgment in behalf of his client:
(1) a legal aid office or public defender office:
(a) operated or sponsored by a duly accredited law school;
(b) operated or sponsored by a bona fide nonprofit community organization;
(c) operated or sponsored by a governmental agency;
(d) operated, sponsored or approved by a bar association;
(2) a military legal assistance office;
(3) a lawyer referral service operated, sponsored or approved by a bar association.
This rule is one of several promulgated by the New Mexico Supreme Court in order to carry out the intent of Canon Two which provides: "A lawyer should assist the legal profession in fulfilling its duty to make legal counsel available." Thus, there is a recognition by the legal profession that it has a duty to educate the public as to its legal needs and to provide information relevant to the selection of the most appropriate counsel. However, there is also a realization that in so doing,

the public is best served if the recommendation of counsel is disinterested and informed. In addition, there is the concern that a lawyer's freedom to exercise independent judgment on behalf of his client be preserved and kept free from compromising influences and considerations.
It is the committee's decision that so long as the National Legal Referral Service is not approved by the State Bar of New Mexico, that an attorney using its services is in violation of Rule 2-103. However, there still remains the question of whether or not the State Bar should promulgate rules for determining whether or not a private referral system should be granted bar approval. This concern stems both from the recognition of the goals of the legal profession to educate the public and from the realization that there are certain forms of solicitation which have been held to be constitutionally protected. For example, in In re Primus, 436 U.S. 412 (1978), the Supreme Court held solicitation on behalf of the American Civil Liberties Union to be constitutionally protected on the ground that it was within the zone of First Amendment protection reserved for associational freedoms. See also, NAACP v. Button, 371 U.S. 415 (1963). California has adopted a set of minimum standards for lawyer referral services which is attached hereto. It reflects certain of the committee's concerns as to what may be constitutionally protected activity.
In conclusion, it is the finding of the Advisory Opinions Committee that an attorney who participates in the National Legal Referral Service is in violation of the New Mexico Code of Professional Responsibility. However, the State Bar of New Mexico has the power to adopt reasonable rules and regulations governing private referral services. The committee feels that it would be preferable for the State Bar to promulgate rules and regulations concerning same in that it is doubtful whether the State Bar has the power to ban all private referral services which are not bar related.