Is a joint television advertising program with exclusive geographic territories and a flat monthly fee a 'lawyer referral service' under Tennessee's rules?
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This page answers the general question as of 2006. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The opinion addresses whether the advertising program offered by R. W. Lynch Co., marketed as the "Injury Helpline," makes Lynch an "intermediary organization" as defined in Tennessee Supreme Court Rule 44 and RPC 7.6. The opinion describes how the program works: personal injury lawyers in a television market agree to participate in a joint advertisement; Lynch produces commercials that comply with Tennessee's advertising rules; each lawyer is identified by name and an exclusive geographic territory; viewers call an 800 number answered by a service that collects only the caller's name, telephone number, and zip code; the call is forwarded to the lawyer whose territory includes that zip code; and each lawyer pays a flat monthly fee regardless of call volume, with no fees split between the lawyers and Lynch.
The opinion characterizes Lynch as performing the function of an advertising agency rather than matching lawyers with clients. It emphasizes that the lawyers are not part of any organization but contract with Lynch for production and placement of joint advertisements, that the answering service performs only a ministerial, non-discretionary function with no screening or judgment, and that callers are not "customers," "members," or "beneficiaries" of Lynch and pay nothing to Lynch.
The opinion concludes that these activities do not constitute the activities of a "lawyer referral service" or "lawyer-advertising cooperative" whose business includes the referral of its customers, members, or beneficiaries to lawyers, and therefore do not constitute the activities of an "intermediary organization" as defined in Tennessee Supreme Court Rule 44 and Rule 8, RPC 7.6.
In practice
The opinion holds that, under the Tennessee rules as they stood at the time, the described program is joint advertising rather than a referral service. Per the opinion, the features that keep it outside the "intermediary organization" definition are that the participating lawyers contract for production and placement of a shared advertisement rather than joining an organization, that each lawyer is identified by an exclusive geographic territory, that the answering service is ministerial and exercises no discretion or screening in routing calls by zip code, that each lawyer pays a flat monthly fee unrelated to call volume, and that no fees are split between the lawyers and the company.
Common questions
Q: Does paying for a joint TV advertising program make me part of a referral service in Tennessee?
A: Not on the facts in this opinion. The opinion concludes that a program in which lawyers contract for production and placement of a shared advertisement, hold exclusive territories, and pay a flat monthly fee is advertising, not a referral service or intermediary organization under Rule 44 and RPC 7.6.
Q: What made the answering service acceptable here?
A: Per the opinion, the operator collected only the caller's name, telephone number, and zip code and forwarded the call to the lawyer whose territory included that zip code, with no discretion, screening, or judgment. The opinion describes the task as "only ministerial in nature."
Q: Does it matter how the lawyers pay?
A: The opinion notes that each lawyer pays a flat monthly fee regardless of the number of calls received and that no fees are split between the advertising lawyers and the company, features it relies on in concluding the program is advertising rather than referral.
Background and rules framework
The opinion interprets Tennessee Supreme Court Rule 44 and Tennessee Supreme Court Rule 8, RPC 7.6, which together define and regulate "intermediary organizations" (including lawyer referral services and lawyer-advertising cooperatives that refer their customers, members, or beneficiaries to lawyers). This is a Tennessee-specific framework; the ABA Model Rules do not contain a counterpart rule on intermediary organizations under this numbering. The opinion applies that definition to the facts of the Lynch program and concludes the program falls outside it.
Citations and references
Rules of Professional Conduct:
- Tennessee Supreme Court Rule 8, RPC 7.6 (intermediary organizations)
Court rules:
- Tennessee Supreme Court Rule 44 (intermediary organizations)
See also
- Alabama Op. 1995-08: Bar Referral Service and Percentage Fees
- Arizona Op. 85-07: Advertising and Professional Independence
Source
- Landing page: https://www.tbpr.org/ethic_opinions/2006-f-152
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
2006-F-152 - Lawyer Advertising Agency
BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE
FORMAL ETHICS OPINION 2006-F-152
Whether the activities of R. W. Lynch Co. (Injury Helpline) constitute the activities of an "intermediary organization" as defined in Tenn. Sup. Ct. R. 44 and R. 8 (7.6).
R. W. Lynch Co. (Lynch) produces and places television commercials for attorneys who advertise jointly. The advertising program offered by Lynch operates as follows:
(1) Personal injury lawyers in a television market agree to participate in a joint advertisement.
(2) Lynch produces television commercials that comply with the Tennessee ethical rules on advertisements.
(3) The commercial identifies in print each advertising lawyer by name and geographic area. Each geographic territory is exclusive to one attorney.
(4) Television viewers call the Injury Helpline 800 telephone number. The answering service inquires only the caller's name, telephone number and zip code.
(5) The caller information is forwarded to the lawyer whose geographic territory includes that zip code. The operator has no discretion in forwarding calls and performs no filtering function.
(6) The answering service does not screen calls or exercise judgment in any manner and doesn't know what the person is calling about. The operator's task is only ministerial in nature.
(7) Each lawyer pays a flat monthly fee for the advertisement, regardless of the number of calls received. No fees are split between the advertising lawyers and Lynch.
Lynch performs the same function performed by advertising agencies. The lawyers who advertise with Lynch are not part of any organization. Rather, they contract with Lynch for production and placement of joint advertisements. There is no attempt to match lawyer and potential client. Callers are not "customers", "members" or "beneficiaries" of Lynch or any organization. Callers do not pay anything to Lynch. No third parties are involved. Under the Lynch advertising program, the only parties involved are Lynch and the participating attorneys.
CONCLUSION
The activities of Lynch described herein do not constitute the activities of a "lawyer referral service" or a "lawyer-advertising cooperative --- the business or activities of which include the referral of its customers, members or beneficiaries to lawyers ---". The activities of Lynch do not constitute the activities of an "intermediary organization" as defined in Tennessee Supreme Court Rule 44 and Rule 8, RPC 7.6.
This 16th day of June, 2006.
ETHICS COMMITTEE:
Thomas S. Scott, Jr., Chair
C. Thomas Davenport, Jr.
W. Ferber Tracy
David L. Mason
APPROVED AND ADOPTED BY THE BOARD
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