Can a Tennessee lawyer give business cards to a bail bondsman so the bondsman will refer criminal cases to the lawyer?

Plain-English summary

The Board was asked whether an attorney could supply business cards to a bail bondsman so that the bondsman could refer cases to the attorney. The opinion located the answer in DR 2-103, the former Code's recommendation-of-employment and solicitation rule. Under DR 2-103(B), a lawyer may not compensate or give anything of value to a person or organization to recommend or secure the lawyer's employment, except for the usual and reasonable fees or dues of the organizations listed in DR 2-103(D). Under DR 2-103(C), a lawyer may not request a person or organization to recommend or promote the lawyer's services except as authorized, with narrow exceptions for bar-association lawyer referral services and certain enumerated legal-services organizations.

The opinion read DR 2-103(D) to limit the organizations a lawyer may be recommended, employed, or paid by, or cooperate with, to a defined list: legal aid or public defender offices, military legal assistance offices, bar-association lawyer referral services, and bona fide organizations that recommend, furnish, or pay for legal services to their members subject to strict conditions. A bail bondsman, the opinion observed, is not on that list.

The opinion then applied DR 1-102(A)(2), which provides that a lawyer may not circumvent a Disciplinary Rule through the actions of another. Because the lawyer could not engage in the solicitation directly, the lawyer could not use an agent to do it. The opinion concluded that it is clearly unethical for a lawyer to pay, or even to request, a bail bondsman to refer cases, and therefore unethical for the lawyer to give the bondsman the lawyer's business card and ask the bondsman to refer criminal cases.

Currency note

This opinion was issued in 1996, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility (including DR 2-103 and DR 1-102(A)(2)) on which it relied, and before the ABA's 2002 Ethics 2000 revisions. The modern analogs are RPC 7.2 (a lawyer may not give anything of value for a recommendation, with limited exceptions), RPC 7.3 (solicitation), and RPC 8.4(a) (violating the rules through the acts of another). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance, and verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Could a Tennessee lawyer pay or ask a bail bondsman to send criminal cases to the lawyer?

A: Per the opinion, no. It concluded that paying or even requesting a bail bondsman to refer cases is clearly unethical, because a bondsman is not among the organizations a lawyer may pay or ask to recommend the lawyer's services under DR 2-103.

Q: Did it matter that the lawyer only handed over business cards rather than cash?

A: No. The opinion treated giving the bondsman cards and asking him to refer cases as the prohibited conduct itself, and it added that under DR 1-102(A)(2) a lawyer may not use an agent to do what the lawyer is forbidden to do directly.

Q: Which referral arrangements did the opinion treat as permissible?

A: Per DR 2-103(D), the opinion identified a closed list: legal aid and public defender offices, military legal assistance offices, bar-association lawyer referral services, and certain bona fide member organizations that recommend, furnish, or pay for legal services. A bail bondsman is not on that list.

Background and rules framework

The opinion interpreted the former Code of Professional Responsibility's DR 2-103 (recommendation of professional employment and solicitation), including subsections (A) through (D), and DR 1-102(A)(2) (circumventing a Disciplinary Rule through the acts of another). The modern analogs are Model Rule 7.2 / Tennessee RPC 7.2 (a lawyer must not give anything of value to recommend the lawyer's services, with limited exceptions such as a qualified lawyer referral service), Model Rule 7.3 / Tennessee RPC 7.3 (solicitation of clients), and Model Rule 8.4(a) / Tennessee RPC 8.4(a) (violating the rules through the acts of another).

Citations and references

Rules of Professional Conduct (former Code):

• DR 2-103(A)-(C) (recommendation of professional employment; no compensating or requesting another to recommend the lawyer). Modern analog: Model Rule 7.2(b) and 7.3 / Tennessee RPC 7.2(b), 7.3
• DR 2-103(D) (closed list of organizations a lawyer may pay or cooperate with). Modern analog: Model Rule 7.2 / Tennessee RPC 7.2
• DR 1-102(A)(2) (circumventing a rule through the acts of another). Modern analog: Model Rule 8.4(a) / Tennessee RPC 8.4(a)

See also

• ABA Formal Op. 501: Solicitation Under Rule 7.3
• ABA Formal Op. 474: Referral Fees and Conflicts
• Maine Ethics Op. 167: Referring Attorneys

Source

• Landing page: https://www.tbpr.org/ethic_opinions/96-f-138

Original opinion text

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

96-F-138 - Bail Bondsman Distributing Lawyer's Card

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 96-F-138

Inquiry is made as to the propriety of an attorney supplying business cards to a bail bondsman so that the bondsman may refer cases to the attorney.

The Code of Professional Responsibility specifically addresses solicitation in DR 2-103(A):

DR 2-103. Recommendation of Professional Employment

(A) A lawyer shall not, except as authorized in DR 2-101(B), recommend employment as a private practitioner, of himself, his partner, or associate to a layperson who has not sought his advice regarding employment of a lawyer.

(B) 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 DR 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 DR 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 DR 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 or her independent professional judgment on behalf of his client.

According to DR 2-103(D), the only organizations that a lawyer may be recommended, employed or paid by, or cooperate with to promote the use of his services are: a legal aid office or public defender office; a military legal assistance office, a lawyer referral service operated, sponsored, or approved by a bar association; and any bona fide organization that recommends, furnishes or pays for legal services to its members, subject to strict conditions. A bail bondsman is not included in this list of permissible organizations.

In addition to the prohibitions on solicitation in DR 2-103, DR 1-102(A)(2) states a lawyer may not circumvent a Disciplinary Rule through actions of another. If the lawyer could not engage in the solicitation, he may not utilize the services of an agent to do what the lawyer is prohibited from doing.

It is clearly unethical for a lawyer to pay, or even request, a bail bondsman to refer cases to the lawyer. Therefore, it is unethical for the lawyer to give the bail bondsman the lawyer's business card and request that the bondsman refer criminal cases to the lawyer.

This 8th day of March, 1996.

ETHICS COMMITTEE:

Donna Simpson Massa, Chair

Barbara J. Moss

Larry D. Wilks

APPROVED AND ADOPTED BY THE BOARD