Can a nonprofit run a lawyer referral service for its member attorneys, and how must those lawyers describe their practice areas?

Plain-English summary

A nonprofit dedicated to bringing legal resources to artists runs a free legal clinic and seminars, and is often asked to refer artists to lawyers experienced in arts-related issues. It proposed an attorney referral program in which member lawyers list categories of practice (copyright, business organizations, torts, and so on), and the nonprofit gives a requesting artist the names of lawyers experienced in the relevant area. Member lawyers would pay annual dues but no referral fee. The inquirer asked whether this satisfies the RPCs, specifically RPC 7.4 (designation of specialty) and RPC 7.2(b) (payment for referrals).

On RPC 7.4, the committee explained that a lawyer may communicate the fields of law in which the lawyer practices but may not state or imply that the lawyer is a "specialist," "expert," or the like except under the limited conditions in RPC 7.4(d). It cited Informal Opinions 1452, 1500, 2043, and 2106 to the same effect. The committee concluded that for the referral service to meet RPC 7.4, it must not in any way indicate that a lawyer is a specialist, but it may list that an attorney's practice is limited to particular fields.

On RPC 7.2(b), the committee noted the rule allows a lawyer to pay the usual charges of a legal service plan or a not-for-profit lawyer referral service, and that Comment 6 understands such services as consumer-oriented organizations providing unbiased referrals to lawyers with appropriate experience, with client protections such as complaint procedures or malpractice-insurance requirements. After learning (by telephone) that the organization requires referral-service lawyers to carry malpractice insurance, collects reports from artists about the services provided, reviews complaints, and may remove a lawyer from the pool, the committee concluded the proposed service satisfies the requirements identified in Comment 6 to RPC 7.2.

In practice

Under this opinion, and under RPC 7.2(b) and 7.4 as they stood at the time, a not-for-profit organization may operate a lawyer referral service that its member lawyers support through dues. The committee tied its approval to the features Comment 6 to RPC 7.2 describes: unbiased referrals, a malpractice-insurance requirement, complaint review, and the ability to remove a lawyer from the pool. On describing practice areas, the committee drew the line at the word "specialist": the service may say an attorney's practice is limited to a field, but may not indicate that any lawyer is a specialist except under the conditions in RPC 7.4(d).

Common questions

Q: Can a nonprofit operate a lawyer referral service that its members pay dues to join?

A: Yes. The committee concluded the proposed not-for-profit referral service satisfies RPC 7.2(b), which allows a lawyer to pay the usual charges of a not-for-profit lawyer referral service, and found it met the client-protection features described in Comment 6.

Q: What features made the referral service acceptable under RPC 7.2?

A: The committee relied on the organization requiring its referral lawyers to carry malpractice insurance, collecting reports from clients about the services provided, reviewing complaints, and being able to remove a lawyer from the referral pool.

Q: How can member lawyers describe their practice areas?

A: They may have their practice described as limited to particular fields, but the committee said the service may not in any way indicate that a lawyer is a "specialist," except under the limited conditions of RPC 7.4(d).

Background and rules framework

The opinion applies Washington RPC 7.2(b) (advertising; payment for recommending a lawyer's services; the counterpart to Model Rule 7.2) and RPC 7.4 (communication of fields of practice and specialization; the counterpart to Model Rule 7.4). RPC 7.2(b) permits a lawyer to pay the usual charges of a not-for-profit lawyer referral service, and Comment 6 describes the client-protection features such services are understood to provide. RPC 7.4(a) lets a lawyer state the fields in which the lawyer does or does not practice, while RPC 7.4(d) restricts use of "specialist," "expert," and similar terms.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.2 / Washington RPC 7.2(b) (payment for recommending a lawyer; usual charges of a not-for-profit lawyer referral service)
• Model Rule 7.4 / Washington RPC 7.4 (communication of fields of practice; limits on claiming specialization)

Other opinions cited:

• WSBA Informal Opinion 1452: use of "expert" in lawyer advertising would imply the lawyer is a specialist
• WSBA Informal Opinion 1500: use of "adoption attorney" implies a specialist
• WSBA Informal Opinion 2043: organization's criteria for "demonstrated competence" may violate RPC 7.4's bar on identifying a lawyer as an expert or specialist
• WSBA Informal Opinion 2106: designation as a "verified" attorney by an internet marketing company and use of its logo may violate RPC 7.4

See also

• WA Ethics Op. 2110: Referral "Donation" to a Nonprofit
• WA Ethics Op. 1508: Prepaid Legal Services Plan
• WA Ethics Op. 1788: Claiming a Specialty in Advertising

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1585

Original opinion text

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

Advisory Opinion: 2146
Year Issued: 2007
RPC(s): RPCs 7.2(b) & 7.4
Subject: A non-profit organization which currently provides free legal clinics adding a lawyer referral service

Facts and Question:

The inquirer states that his client is a non-profit organization dedicated to bringing legal resources to artists. The organization provides a legal clinic at no charge and provides seminars on topics related to the arts. It is frequently asked by artists for referrals to attorneys skilled in arts-related legal issues. As a result it would like to establish an attorney referral program. It will require that member lawyers place themselves into categories of expertise (copyright, business organizations, torts, etc.), and that when a request for referral arises it will provide the prospective client/artist with the names of the attorneys experienced in the specific discipline in which he or she needs advice. The proposed referral system would only be open to attorney members who will not pay a referral fee, but are required to pay annual dues to belong to the organization. Does the proposed system of referrals satisfy the requirements of the Rules of Professional Conduct, most specifically RPC 7.4 (designation of specialty) and of RPC 7.2(b) (payment for referrals)?

Discussion and Answer:

RPC 7.4(a) provides:

“A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.”

RPC 7.4(d) provides:

“A lawyer shall not state or imply that a lawyer is a specialist in a particular field of law, except upon issuance of an identifying certificate, award, or recognition by a group, organization, or association, a lawyer may use the terms “certified”, “specialist”, “expert”, or any other similar term to describe his or her qualifications as a lawyer or his or her qualifications in any subspecialty of the law. If the terms are used to identify any certificate, award or recognition by any group, organization or association, the reference must: (1) be truthful and verifiable and otherwise comply with Rule 7.1; (2) identify the certifying group, organization or association; and (3) the reference must state that the Supreme Court of Washington does not recognize certification of specialties in the practice of law, and that the certification, award or recognition is not a requirement to practice law in the state of Washington.”

[Comment 1] [Washington revision] states:

“Paragraph (a) of this Rule permits a lawyer to indicate areas of practice in communications about the lawyer’s services. If a lawyer practices only in certain fields, or will not accept matters except in a specified field or fields, the lawyer is permitted to so indicate.”

Additional Washington Comment (4) states:

“Statements indicating that the lawyer is a “specialist”, practices a “specialty”, “specializes in” particular fields, and the like, are subject to the limitations set forth in paragraph (d). The provisions of paragraph (d) were taken from former Washington RPC 7.4(b).”

Thus, a lawyer may communicate the fields of law in which the lawyer practices, but is not permitted to state or indicate that a lawyer is a “specialist”, practices a “specialty”, or “specializes” in particular fields except in the limited circumstances and under the conditions stated in RPC 7.4(d). See, to like effect, Informal Opinions #1452 (use of the word “expert” in lawyer advertising would violate RPC 7.4 because it would imply that the lawyer is a “specialist”); #1500 (use of the term “adoption attorney” implies specialist); #2043 (statements made by an 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 may violate RPC 7.4’s prohibition on the identification of a lawyer or law firm as an “expert” or a “specialist”); and #2106 (designation as a “verified” attorney by an internet marketing company and use of logo may violate RPC 7.4). Note also should be made that adjectives used to describe a lawyer’s practice in a field of law may be misleading under RPC 7.1. The Committee is of the opinion that for the proposed referral service to meet the requirements of RPC 7.4, it must not in any way indicate that a lawyer is a specialist in violation of the above rules, but may list that an attorney’s practice is limited.

RPC 7.2(b) provides:

“A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may … (2) pay the usual charges of a legal service plan or a non-for-profit lawyer referral service.”

Comment 6 [Washington revision] to RPC 7.2 states:

“A lawyer may pay the usual charges of a legal service plan or a non-for-profit lawyer referral service …. A lawyer referral service, on the other hand, is any organization that holds itself out to the public as a lawyer referral service. Such lawyer referral services are understood by laypersons to be consumer-oriented organizations that provide unbiased referrals to lawyers with appropriate experience in the subject matter of the representation and afford other client protections, such as complaint procedures or malpractice insurance requirements. Consequently, this Rule only permits a lawyer to pay the usual charges of a not-for-profit lawyer referral service.”

In a telephone call to the inquirer, we were informed that lawyers presently volunteering for the legal clinic are required to carry malpractice insurance and that this requirement will also apply to the lawyers who sign up for the lawyer referral service. In addition, the organization will request artists to provide reports of services provided by the attorney to whom the artist is referred, and it will review any complaints about such services. Depending upon the circumstances, it may remove a lawyer from the referral pool.

Thus, the Committee is of the opinion that the proposed lawyer referral service will satisfy the requirements identified in Comment 6 to RPC 7.2.