Can a South Carolina lawyer direct or staff a membership association's legal services plan and pay to be listed in its lawyer directory?

Plain-English summary

A membership association planned a legal services division as a member benefit. Salaried telephone operators, some attorneys and some not, would screen member calls, give a brief generic explanation of the kinds of services an attorney could provide, and supply the names of local attorneys who had paid an annual fee to be listed in the association's legal services directory, without recommending any one attorney or giving specific advice. The member and chosen attorney would then negotiate scope and fees directly, with the association exercising no control and collecting no referral fee. An attorney was offered the position of director.

The committee answered the questions favorably. First, under Rule 1.13, a lawyer may be employed or retained by an organization, and serving as director of the legal services division is little different from an attorney employed by a corporation's legal department; a lawyer may also serve as a telephone operator, provided the member contact stays within the proposed boundaries and does not violate Rule 7.3. Second, paying an annual fee to be listed does not violate Rule 7.2: Rule 7.2(a) permits advertising through a legal directory if not false or misleading, and the directory helps a segment of the public obtain legal services; Rule 7.2(c)'s bar on paying for recommendations is not implicated because the member receives the names of all local listed attorneys and chooses without the association recommending or channeling work.

Third, the committee concluded the directory's publication is not subject to Rule 7.3(c). Rule 7.3 regulates direct solicitation between an attorney and a prospective client because of the potential for overreaching; here the association merely provides a directory of names, addresses, and practice areas, with no direct attorney-to-member contact, so the potential for abuse is practically nonexistent. The committee also noted that Rule 7.3(c)(1)'s "ADVERTISING MATERIAL" marking does not apply to communications sent in response to a prospective client's request, and here the member requests legal assistance before receiving the directory.

Currency note

This opinion was issued in 1995, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. 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: Can a lawyer run or staff a membership association's legal services plan?

A: The committee concluded yes. Under Rule 1.13 a lawyer may direct the division, and may serve as a screening telephone operator if the member contact stays within the proposed limits and does not violate Rule 7.3.

Q: Can a lawyer pay to be listed in the association's directory?

A: The committee concluded yes, without violating Rule 7.2, because the directory simply lists all paying local attorneys and the association does not recommend or channel work.

Q: Must the directory carry the Rule 7.3(c) solicitation notices?

A: The committee concluded no. There is no direct attorney-to-prospect solicitation, and the marking requirement does not apply to materials sent in response to a member's request.

Background and rules framework

The opinion applied Rule 1.13 (organization as client), Rule 7.2 (advertising, including the (c) anti-payment-for-recommendation provision), and Rule 7.3 (direct solicitation, including the (c) notice requirements), each corresponding to the like-numbered Model Rule as the rules stood in 1995.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.13 / Model Rule 1.13: organization as client.
• South Carolina RPC 7.2(a), (c) / Model Rule 7.2: advertising; paying for recommendations.
• South Carolina RPC 7.3 / Model Rule 7.3: direct solicitation of prospective clients.

See also

• SC Bar Ethics Op. 96-08: Paying a Bondsman to Place Cards
• SC Bar Ethics Op. 96-15: Legal Services Referral Conflicts

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-95-11/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 95-11

Attorney A has been approached by a membership organization (Association) and offered the position of director of the Association's legal services division, which is in the process of being formed.

The Association offers certain benefits (goods and services) to its members and proposes to add the legal services division as an additional benefit of membership. The Association proposes to hire, on a salaried basis, a certain number of telephone operators to screen calls from members. These telephone operators would include both attorneys admitted to practice in South Carolina and persons who are not attorneys.

The Association proposes to publish a legal services directory in which attorneys admitted to practice in South Carolina would pay an annual fee to the Association for the privilege of having their individual names and/or firms listed in the directory. These attorneys would not pay any other fee or compensation to the Association.

The Association proposes that telephone operators for the legal services division would answer calls from members of the Association who are seeking the services of an attorney. After the member describes the situation, the telephone operator would provide a brief, generic explanation of the types of services an attorney could provide in that specific situation. The telephone operator would then provide the member with the names of those attorneys in the member's locality who have paid the annual fee to have their name and/or firm listed in the Association's legal services directory. The telephone operator would not recommend one attorney over another and would offer no specific legal advice. The Association would then mail a copy of the legal services directory to the member.

The Association proposes that the transaction between the member and the attorney the member selects would be strictly confidential between those two parties. The Association would not intervene or exhibit any control or influence over the relationship between the member and attorney. The member and attorney would be responsible for directly negotiating the extent of the legal services and the fees for such services.

The Association proposes that it would not assume any responsibility or liability for the services provided by the attorney and would not collect any additional fees from any attorney for any referrals.

Questions:
1. May an attorney become employed by the Association as either director of the legal services division or as a telephone operator?
2. May an attorney pay an annual fee to become listed in the Association's legal services directory without violating Rule 7.2 of the Rules of Professional Conduct?
3. Is the publication of the Association's legal services directory subject to the requirements of Rule 7.3(c) of the Rules of Professional Conduct?
4. If the answer to Question 3 is in the affirmative, would the requirements of Rule 7.3(c) be satisfied if the wording required by that Rule is included on the face of the legal services directory?

Summary:
1. An attorney may become employed by the Association as either director of the legal services division or as a telephone operator.
2. An attorney does not violate Rule 7.2 of the Rules of Professional Conduct by paying an annual fee to become listed in the Association's legal services directory.
3. The publication of the Association's legal services directory is not subject to the requirements of Rule 7.3(c) of the Rules of Professional Conduct.

Opinion:
1. Rule 1.13 of the Rules of Professional Conduct allows an attorney to be employed or retained by an incorporated or unincorporated organization. Under the circumstances here, there is little difference between Attorney A and an attorney employed by the legal department of a corporation. An attorney may further be employed as a telephone operator by the Association, provided the contact between the attorney and member conforms to the boundaries proposed by the Association and does not violate Rule 7.3.

2. Rule 7.2(a) permits an attorney to advertise services through the public media, including a legal directory, provided the communication is not false or misleading. Publication and distribution of the Association's legal service directory complies with Rule 7.2 because it is intended to assist a segment of the public (members of the Association) in obtaining legal services and to expand public information about legal services.

Rule 7.2(c) generally prohibits an attorney from giving anything of value to a person for recommending the lawyer's services. In this situation, the member will be furnished the names of all attorneys in the members local area who have purchased a listing in the legal services directory. The Association does not recommend the services of any attorney or channel work to a specific attorney. The member, without interference or influence from the Association, will determine which attorney, if any, to professionally employ.

3. Rule 7.3 regulates direct solicitation of professional employment between an attorney and a prospective client, due to the potential for abuse inherent in such a situation. Under the circumstances here the Association will simply provide to those members requesting legal services a directory which lists the name, address, and areas of practice of the attorneys included therein. Consequently, due to the lack of direct contact between the attorney and member, the specific concerns addressed by Rule 7.3 (a) regarding abuse and overreaching whenever an attorney directly contacts a prospective client are avoided. Clearly, the potential for abuse is practically nonexistent. Further, the requirement in Rule 7.3(c)(1) that certain communications be marked "ADVERTISING MATERIAL" does not apply to communications sent in response to a request by a potential client. In this situation, the member would first contact the Association and request legal assistance before receiving the directory.