Can a West Virginia lawyer join a for-profit company that screens injury callers and refers them to paying attorneys on a rotation basis?

Plain-English summary

Numerous lawyers asked the Committee about belonging to the Personal Injury Trial Lawyers' Association ("PITLA"), a nonprofit organization managed by a for-profit company called Promark. PITLA sold "slots" to attorneys in geographic regions (about 15 in West Virginia), with a monthly advertising fee and a monthly administrative charge per slot. PITLA produced and ran television advertisements aimed at potential personal injury plaintiffs, listing a toll-free number; when someone called, PITLA employees screened the caller to determine whether the caller had a compensable injury, whether the tortfeasor was insured, and whether the caller was unrepresented. Callers who met the criteria were given the name of an attorney or firm in the appropriate location, with referrals made on a slot-rotation basis so an attorney with several slots was referred more often.

The Committee concluded that, as structured, an attorney could not participate without violating the Rules of Professional Conduct, because PITLA functioned as a referral agency (as its promotional material acknowledged). Rule 7.2(c) provides that a lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may pay the reasonable costs of permitted advertisements and the usual charges of a not-for-profit lawyer referral service or other legal service organization. Although PITLA was technically a nonprofit, its purpose was to generate income for Promark and the lawyer members, whereas a genuine nonprofit referral service contemplated by the Rules has a primary purpose of serving the public. PITLA was not simply an advertising cooperative, because it screened calls rather than merely providing the name of an appropriately located attorney to all callers, and its advertising boasted of the "quality" of the screened referrals; the Committee noted the Cleveland Bar Association reached the same conclusion that an identical program violates Ohio's Code (Opinion 90-2, 5/23/90). The program also did not comply with Rule 7.2(d), which requires that any advertisement include the name of at least one lawyer responsible for its content (the Committee read this to require the law firm's name), because PITLA's advertising did not list participating firms or attorneys.

The Committee said it was not insensitive to the needs of sole practitioners and smaller firms who must continually seek new clients, and it was cognizant of Peel v. Attorney Registration and Disciplinary Commission of Illinois, holding a state may not absolutely prohibit potentially misleading legal advertising if the information may also be presented in a non-deceptive way, and may instead require additional information to avoid deceptiveness. The Committee concluded that although a for-profit lawyer referral service is impermissible, an advertising service that provides attorney names on a slot-rotation basis is permissible under four conditions: (1) advertisements aired or read in West Virginia must contain the names of the participating West Virginia attorneys or firms; (2) the personnel who provide callers with attorney names do not screen calls in any manner; (3) advertisements must contain the disclaimer "Advertisement Paid for by Sponsoring Attorneys. Not a Lawyer Referral Service."; and (4) the personnel providing names must inform callers that the named attorney has paid for the advertisement and that the personnel do not endorse the attorney.

Currency note

This opinion was issued in 1990, before the West Virginia Supreme Court of Appeals' comprehensive 2015 revision of the West Virginia Rules of Professional Conduct (effective January 1, 2015). 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: Could a lawyer pay to join a for-profit company that screens injury callers and refers them out?

A: No. The opinion concluded the screening, for-profit PITLA program functioned as an impermissible referral service and violated Rule 7.2(c)'s bar on giving value for recommendations.

Q: Why did the call screening matter?

A: The opinion concluded that screening callers (rather than giving every caller an appropriately located attorney's name) made the program a referral agency that boasted of "quality" referrals, not a mere advertising cooperative.

Q: Is any group advertising arrangement allowed?

A: Yes. The opinion concluded an advertising service providing attorney names on slot rotation is permissible if the ads name the participating West Virginia firms, no calls are screened, the ads carry the "Not a Lawyer Referral Service" disclaimer, and personnel tell callers the attorney paid for the ad and is not endorsed.

Background and rules framework

The opinion interpreted West Virginia's Rule 7.2 (Model Rule 7.2) on advertising. Rule 7.2(c) bars paying for recommendations except permitted advertising costs and the usual charges of a not-for-profit lawyer referral service; Rule 7.2(d) requires an advertisement to name at least one responsible lawyer (read as the firm's name). The Committee also referenced Rule 7.1's bar on misleading communication through Peel and aligned with Cleveland Bar Association Opinion 90-2.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.2 / WV Rule 7.2(c) (paying for recommendations; exception for not-for-profit referral services)
• Model Rule 7.2 / WV Rule 7.2(d) (advertisement must include the name of a responsible lawyer)
• Model Rule 7.1 / WV Rule 7.1 (false or misleading communication)

Cases:

• Peel v. Attorney Registration and Disciplinary Commission of Illinois, a state may not absolutely prohibit potentially misleading legal advertising that could also be presented non-deceptively

Other opinions cited:

• Cleveland Bar Association Professional Ethics Committee Opinion 90-2 (5/23/90): an identical program violates Ohio's Code of Professional Responsibility

See also

• WV Ethics Op. 97-03: Prepaid Legal Services Plans
• WV Ethics Op. 96-01: No Recovery-No Fee Advertising Disclosure
• AL Ethics Op. 1995-08: LRS Percentage-Fee Programs

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7d7f118f6c3e2aa2fe.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

LEGAL ETHICS INQUIRY 90-3

LAWYER REFERRAL/ADVERTISING PROGRAMS

Numerous lawyers have asked the Committee on Legal Ethics about the ethical propriety of belonging to the Personal Injury Trial Lawyers' Association ("PITLA").[1] PITLA is a nonprofit organization managed by a for-profit company called Promark. PITLA sells "slots" to attorneys in certain geographic regions. It is the understanding of the Committee that PITLA is selling 15 slots in West Virginia. An attorney or firm may buy more than one slot. The attorney is charged a monthly advertising fee and a monthly administrative charge per slot. There are also certain one time charges.

PITLA produces and runs television advertisements geared towards potential personal injury plaintiffs. A toll-free number is listed. When someone calls, he/she is screened by PITLA employees to determine if the caller has a compensable injury, if the tortfeasor is insured and if the caller is unrepresented. If the caller meets these criteria, he/she is given the name of an attorney or firm in the appropriate geographic location. The referrals are made on a slot rotation basis. Thus, an attorney with several slots will be referred more often than an attorney with only one.

As PITLA is currently structured, an attorney cannot participate in its program without violating the Rules of Professional Conduct. It functions as a referral agency, as acknowledged in its promotional material. Rules 7.2(c) states:

A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may pay the reasonable costs of advertisements or communications permitted by this rule and may pay the usual charges of a not-for-profit lawyer referral service or other legal service organization.

Although PITLA is technically a nonprofit organization, its purpose is to generate income for Promark and the lawyer members. A genuine nonprofit referral service, as contemplated by the Rules, has a primary purpose of serving the public.

PITLA is not simply an advertising cooperative for attorneys, because it screens calls, rather than merely providing the name of an appropriately located attorney to all callers. Indeed, the program's advertising boasts of the "quality" of the screened referrals. It was this feature that caused the Cleveland Bar Association Professional Ethics Committee to reach the same conclusion; that a program identical to PITLA violates Ohio's Code of Professional Responsibility. Opinion 90-2, 5/23/90.

Moreover, PITLA's advertising program does not comply with Rule 7.2(d), which requires that any advertisement shall include the name of at least one lawyer responsible for its content. The Committee has interpreted this rule to require only the name of the law firm, rather than an individual attorney's name. But PITLA's advertising does not list the names of participating firms or attorneys.

The Committee is not insensitive to the needs of sole practioners or smaller firms who concentrate on personal injury representation and must continually seek new clients. The Committee is also cognizant of the United States Supreme Court's recent holding in Peel v. Attorney Registration and Disciplinary Commission of Illinois, that a State may not place an absolute prohibition on potentially misleading legal advertising if the information may also be presented in a way that is not deceptive. To avoid deceptiveness, the State may require an attorney provide additional information in an advertisement.

Although a for-profit lawyer referral service is impermissible, an advertising service which provides the names of attorneys on a slot rotation basis is permissible under the following conditions:

1. Advertisements which will be aired or read in West Virginia must contain the names of the particpating West Virginia attorneys or firms.

2. The personnel who provide callers with the names of attorneys do not screen the calls in any manner.

3. Advertisements must contain the following disclaimer: "Advertisement Paid for by Sponsoring Attorneys. Not a Lawyer Referral Service."

4. The personnel who provide the names of attorneys must inform the callers that the named attorney has paid for the advertisement, and the personnel do not endorse the attorney.

Dated: October 23, 1990

Arthur M. Recht, Chairman
Committee on Legal Ethics

[1] PITLA is not to be confused with voluntary legal associations such as the West Virginia Trial Lawyers Association, the American Trial Lawyers Association or the Defense Trial Counsel of West Virginia.