Can a physician who is also a New York lawyer advertise free exams to screen medical malpractice claims for referral to lawyers, without disclosing the law license or the fee split?

Plain-English summary

A medical doctor who is also a member of the New York bar already serves as a medical expert for lawyers in malpractice cases. The doctor proposed to advertise free physical examinations to the public to assess whether prospective claimants have viable malpractice claims, then refer the viable ones to lawyers (with the claimant's consent) in exchange for a share of any contingent fee. The advertising would not disclose that the doctor is a lawyer or that the doctor expects a fee from the referred lawyer. The committee was asked whether this is proper.

The committee first marks limits: it offers no view on advertising rules for the medical profession, and assumes a physician with a law degree may advertise purely medical services without mentioning the degree. The pivotal question is whether assessing injuries as legal claims is the practice of law. The committee concludes that this doctor/lawyer, evaluating the viability of malpractice claims for referral (including timeliness, damages, and likelihood of success), is practicing law, drawing on N.Y. State 678 (a lawyer-mediator is presumed to render legal service). Because the advertised services are legal services, the advertising must comply with the lawyer-advertising rules, and omitting the legal background would be "false, deceptive or misleading" under DR 2-101. The committee adds that even with disclosure, holding oneself out as a malpractice lawyer while intending only to refer all cases out for a fee would itself be false and misleading.

The committee then holds that, even in the exceptional case where the doctor/lawyer could fully separate the medical from the legal, the proposed fee arrangements are independently barred and would be barred even for a non-lawyer doctor. DR 2-103(B) prohibits paying for legal referrals: the referred lawyer compensating the inquirer for a recommendation resulting in employment violates the rule, and under DR 1-102(A) a lawyer may not aid another lawyer's violation. DR 2-107 bars dividing legal fees with a lawyer outside the firm unless that lawyer acts as counsel for the client, assumes joint responsibility (or does proportionate work), and the client consents to a total fee that is reasonable in the aggregate; the inquirer, intending neither to act as counsel nor to disclose the fee split, fails those conditions. The committee notes a doctor may still be paid a fixed (not contingent) expert fee, citing DR 7-109(C).

In practice

The opinion holds, under the former Code as it stood at the time, that a doctor/lawyer who screens prospective malpractice claims for referral is practicing law, so the advertising must disclose the law license or it is false and misleading under DR 2-101. It further holds the referral-for-a-fee scheme is barred: paying for legal referrals violates DR 2-103(B) (and aiding it violates DR 1-102(A)), and any fee division must satisfy DR 2-107's conditions (client consent, joint responsibility, reasonable aggregate fee). The committee notes a doctor may still receive a fixed, non-contingent expert fee consistent with DR 7-109(C), and declines to opine on whether a doctor may advertise purely medical opinions.

Common questions

Q: Is screening malpractice claims for referral the practice of law?

A: Yes, per the committee. It concludes a doctor/lawyer evaluating the viability of malpractice claims (timeliness, damages, likelihood of success) for referral is practicing law, so the lawyer-advertising rules apply.

Q: Must the advertising disclose that the doctor is also a lawyer?

A: Yes. The committee concludes that because the advertised services are legal services, omitting the legal background makes the advertising false, deceptive, or misleading under DR 2-101.

Q: Can the doctor/lawyer take a share of the referred lawyer's contingent fee?

A: Not as proposed. The committee concludes paying for the referral violates DR 2-103(B), and any fee division must meet DR 2-107's conditions: the lawyer acts as counsel and assumes joint responsibility, the client consents, and the total fee is reasonable.

Q: Can a doctor still be paid as an expert?

A: Yes, but with a fixed fee. The committee notes a doctor may be paid a fixed (not contingent) consulting or testifying fee, citing DR 7-109(C)'s bar on contingent witness compensation.

Background and rules framework

The opinion interprets the former Code's advertising rule DR 2-101 (false, deceptive, or misleading communications; an analogue of ABA Model Rule 7.1), the bar on paying for referrals DR 2-103(B) (Model Rule 7.2(b)), the fee-division rule DR 2-107 (Model Rule 1.5(e)), the anti-circumvention rule DR 1-102(A), and DR 7-109(C) on contingent witness fees. The threshold turns on whether evaluating claims for referral is the practice of law.

Citations and references

Rules of Professional Conduct:

• MR 7.1 (communications about a lawyer's services)
• MR 7.2(b) (payments for recommending a lawyer's services)
• MR 1.5(e) (division of fees between lawyers not in the same firm)
• Former Code DR 2-101; DR 2-103(A)(2)(e); DR 2-103(B); DR 2-107; DR 1-102(A); DR 7-109(C)

Other opinions cited:

• N.Y. State 678 (1996): a lawyer serving as a mediator is presumed to render a legal service
• N.Y. State 698 (1998): a lawyer may not accept a malpractice case conditioned on a contingent consultant fee

See also

• NY State Bar Op. 799: Paid online lawyer-matching services
• NY State Bar Op. 806: Fee sharing with a foreign law firm on referrals
• NY State Bar Op. 1131: Paying a for-profit lead-generation service

Source

• Landing page: https://nysba.org/ethics-opinion-795/