Can a lawyer participate in a referral service run by the state Highway Patrol that sends accident victims to participating attorneys?

Plain-English summary

The South Carolina Highway Patrol proposed a victim/witness program in which specially trained troopers, "Traffic Accident Victims Advocates," would provide information on financial, legal, and psychological assistance and operate a lawyer referral service. Participating attorneys would pay no fee and share no fee, but would charge their own fees to the clients referred to them. The question was whether a lawyer could ethically participate.

The committee said the question is governed by Rules 7.1 and 7.3. It concluded an attorney should not participate, because having highway patrol officers refer victims to specific attorneys may imply, or give the false impression, that the attorney is in a position of influence with the patrol or the judicial system, and may create an unjustified expectation about results because a patrolman's recommendation may be highly regarded. The committee quoted Rule 7.1(b), which makes a communication false and misleading if it "is likely to create an unjustified expectation about results the lawyer can achieve." It acknowledged the program's purpose of assisting accident victims was admirable, but stressed the potential for misunderstanding or false perceptions, heightened because victims and families may be overwhelmed and unable to evaluate alternatives with reasoned judgment, and it pointed to the South Carolina Bar's own Lawyer Referral Service as an available alternative.

Currency note

This opinion was issued in 1990, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Can a lawyer take referrals from a government agency's referral program?

A: On these facts the committee said no; a Highway Patrol referral service was improper because trooper referrals to specific lawyers may imply influence with the patrol or the courts and create unjustified expectations under Rule 7.1(b).

Q: Did it matter that no fees were paid or shared?

A: The committee's objection was not about fees but about the false impression and unjustified expectations the trooper recommendations could create; the no-fee, no-fee-sharing structure did not cure that concern.

Q: Was there an approved alternative?

A: Yes. The committee pointed to the South Carolina Bar's Lawyer Referral Service as an available alternative means of referral.

Background and rules framework

The opinion applies Rule 7.1 (communications about a lawyer's services) and Rule 7.3 (solicitation), each corresponding to the like-numbered Model Rule. The committee grounded its conclusion in Rule 7.1(b)'s prohibition on communications likely to create unjustified expectations about results.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 7.1(b) / Model Rule 7.1: a communication is false and misleading if it is likely to create an unjustified expectation about results the lawyer can achieve.
• South Carolina RPC 7.3 / Model Rule 7.3: solicitation of clients.

See also

• SC Bar Ethics Op. 06-13: Referrals From a Trade Group
• SC Bar Ethics Op. 07-08: Joining a Referral Source's Ad
• SC Bar Ethics Op. 90-37: Mailing Brochures to Seminar Attendees

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-90-36/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 90-36

The South Carolina Highway Patrol is developing and implementing a victim/witness program to assist victims and family members of alcohol and drug related traffic accidents. This project will consist of specially trained troopers who will provide information concerning programs for financial legal and psychological assistance. As part of this program, the specially trained troopers, known as Traffic Accident Victims Advocates, propose to operate a lawyer referral service wherein they will refer these victims to attorneys who participate in the program. The participating attorneys pay no fees for this service, and fees are not shared. The participating attorneys are not volunteering their services, but will be charging attorney fees to those clients who are referred to them.

Question:
Is it ethically proper for an attorney to participate in a referral service organized and implemented by South Carolina Highway Patrol?

Summary:
An attorney should not participate in a lawyer referral service operated by the South Carolina Highway Patrol.

Opinion:
This question is governed by Rules of Professional Conduct 7.1 and 7.3.

The fact that highway patrol officers are referring victims to specific attorneys may imply or give the false impression that the attorney is in a position of influence with the highway patrol of the judicial system. It may also create an unjustified expectation about the results the lawyer can achieve since the highway patrolman's recommendation may be highly regarded. This would constitute a violation of Rule 7.1(b) which reads in pertinent part as follows:

"A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false and misleading if it...(b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law;...".

While the purpose behind this proposal of assisting accident victims is admirable, there is potential for misunderstanding or false perceptions being created through the patrolman's recommendation. This is particularly true in light of the fact that the potential clients, the victims and their families, may already be overwhelmed by the circumstances of the accident and find it difficult to fully evaluate all available alternatives with reasoned judgment. This potential should be avoided, especially since alternative means of referral are available through the South Carolina Bar Referral Service, PO Box 608, Columbia, SC 29202, 1-800-868-2284.