Can a lawyer financially support a nonprofit in exchange for being acknowledged to its members as having 'demonstrated competence'?

Plain-English summary

The inquirer was a board member of an organization that supports a particular class of injured individuals and sought lawyer participation, including financial support. In exchange for that support, a lawyer would be allowed to use the organization's seal or logo on letterhead and advertisements, and the organization would "acknowledge" the lawyer in its newsletter, seminars, and conventions, provided the lawyer met the organization's criteria for "demonstrated competence" in a subject area. This is a close variant of the arrangement the committee addressed in Opinion 2038.

The committee concluded the relationship is not proper and identified potential violations of four rules. Because the lawyers would have no direct control over the organization's communications, communications about their services could be false or misleading under RPC 7.1, especially when a member asks the organization how to reach a lawyer with "demonstrated competence." RPC 7.2(c) bars giving anything of value for referrals, and the committee said the organization's acknowledgment of contributing lawyers creates a de facto referral service, because the acknowledgment is given only to lawyers meeting the competence criteria; the organization does not qualify as a not-for-profit lawyer referral service under that rule. The organization's in-person and direct communication with members about qualifying lawyers would be barred by RPC 7.3 if done by the lawyer, and therefore by RPC 8.4(a) when done by the organization for the lawyer. Finally, the organization's statements about "demonstrated competence" risk violating RPC 7.4's limits on identifying a lawyer as an "expert" or "specialist," even without using those words, because the organization is not an evaluation or testing organization under RPC 7.4(b).

Currency note

This opinion was issued in 2003, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct, which reorganized the advertising and solicitation rules (RPC 7.1 through 7.5), and before later amendments to RPC 7.2 and 7.3. Subsequent rule amendments or later opinions may have changed the analysis, including the treatment of payments for referrals and qualified referral services. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

In practice

Under the Washington advertising and solicitation rules as they stood at the time of the opinion, the committee treated the lawyer-support arrangement as improper on several independent grounds: the lawyer's inability to control the organization's communications (RPC 7.1), the acknowledgment-for-contributions structure operating as a de facto referral service that is not a qualified not-for-profit referral service (RPC 7.2(c)), the organization's in-person solicitation about qualifying lawyers (RPC 7.3 with 8.4(a)), and the risk of conveying improper "specialist" or "expert" standing through the "demonstrated competence" label (RPC 7.4). The committee framed these as potential violations arising from the proposal as described.

Common questions

Q: Can a lawyer fund a nonprofit in exchange for being acknowledged to its members?

A: The committee said the arrangement is improper. It treated the organization's acknowledgment of contributing lawyers as a de facto referral service under RPC 7.2(c), because the acknowledgment is given only to lawyers meeting the organization's criteria, and the organization does not qualify as a not-for-profit lawyer referral service.

Q: What is the problem with the "demonstrated competence" label?

A: The committee said statements about "demonstrated competence" risk violating RPC 7.4's prohibition on identifying a lawyer as an "expert" or "specialist," even without using those words, because the organization is not an evaluation or testing organization under RPC 7.4(b).

Q: Does it matter that the lawyer does not write the organization's messages?

A: Yes. Because the lawyer has no direct control over the organization's communications, the committee said there is a substantial risk those communications about the lawyer's services would be false or misleading under RPC 7.1.

Background and rules framework

The opinion interprets Washington's advertising and solicitation rules, which correspond to the Model Rules of the same number as they then existed: RPC 7.1 (Model Rule 7.1, communications concerning a lawyer's services that must not be false or misleading); RPC 7.2(c) (Model Rule 7.2, advertising, including the bar on giving something of value for recommending the lawyer's services); RPC 7.3 (Model Rule 7.3, solicitation and direct contact); and RPC 7.4 (Model Rule 7.4, communication of fields of practice and limits on "specialist" or "expert" claims). RPC 8.4(a) (Model Rule 8.4(a)) makes it misconduct to violate the rules through the acts of another, which the committee applied to solicitation carried out by the organization for the lawyer. The analysis parallels Opinion 2038, decided on the same kind of facts.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.1 / Washington RPC 7.1 (false or misleading communications about a lawyer's services)
• Model Rule 7.2 / Washington RPC 7.2(c) (giving something of value for referrals; qualified referral services)
• Model Rule 7.3 / Washington RPC 7.3 (solicitation; in-person and direct contact)
• Model Rule 7.4 / Washington RPC 7.4 (fields of practice; "specialist" and "expert" claims)
• Model Rule 8.4(a) / Washington RPC 8.4(a) (violating the rules through the acts of another)

See also

• WSBA Ethics Op. 2038: Paying a Nonprofit for Referrals
• WSBA Ethics Op. 1071: Paid Lawyer Referral Service
• WSBA Ethics Op. 1062: Soliciting Referrals From Lawyers

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1286

Original opinion text

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

Advisory Opinion: 2043
Year Issued: 2003
RPC(s): RPC 7.1, 7.2(c), 7.3, 7.4, 8.4(a)
Subject: Organization seeking lawyer support

The inquirer is a board member of an organization that focuses on providing support for a particular class of injured individuals. The organization seeks lawyer participation in the organization, including financial support. In exchange for providing financial support, a lawyer would be allowed to use the organization’s seal/logo on the lawyer’s letterhead and advertisements and the organization would “acknowledge” the lawyer in the organization’s newsletter, annual seminars, conventions, etc.; provided that the lawyer meets the organization’s criteria for “demonstrated competence” in a subject area.

The Committee does not believe that the relationship proposed by the organization is proper because there are potential violations of RPC 7.1, 7.2(c), 7.3, 7.4, and 8.4(a).

Because the lawyers will not have any direct control over the communications made to the organization’s members by its staff, there is a substantial risk that communications concerning the lawyer’s services may violate the restrictions of RPC 7.1, which prohibits false or misleading communications about a lawyer’s services. Such communication would occur when a member contacts the organization to inquire about how to contact a lawyer that meets the organization’s “demonstrated competence”.

In addition, RPC 7.2(c) bars referrals in return for anything of value provided by the lawyer. A de facto referral service is created by virtue the organization’s acknowledgment of the contributing lawyer in newsletters, annual seminars, conventions, etc. because such acknowledgement would be given only to those lawyers that meet the organization’s criteria regarding “demonstrated competence”. The organization, while being a non-profit organization, is not a not-for-profit lawyer referral service or other legal service organization as identified in RPC 7.2(c).

Furthermore, RPC 7.3 when read with RPC 8.4(a) may prohibit the relationship contemplated between a lawyer and the organization. The organization apparently would have in-person and direct communication with members and their families regarding lawyers that meet the organization’s criteria for establishing “demonstrated competence” in a particular subject area (i.e. see third paragraph above). Such direct contact would be barred by 8.4(a) if engaged in by the lawyer under RPC 7.3(a) and therefore would be barred RPC 8.4(a) if done by the organization on behalf of the lawyer.

Lastly, RPC 7.4’s prohibition on the identification of a lawyer or law firm as an “expert” or a “specialist” may be violated by statements made by the organization to its members and the general public regarding the criteria the organization intends to use to define “demonstrated competence” in a particular subject area, even without directly using such terms. The organization is not an evaluation or testing organization as contemplated by RPC 7.4(b), and the risks of the proposed relationship violating RPC 7.4 is substantial.