Can lawyers participate in a for-profit lawyer referral service that is not operated or approved by a bar association?

Plain-English summary

The Board considered whether lawyers could participate in a lawyer referral service promoted and operated by a private company, the Personal Injury Trial Lawyers Association (PITLA, U.S.A., Inc.). As described, PITLA solicited a limited number of lawyers to pay position, enrollment, production, and advertising fees in exchange for referrals of consumers who called a central answering service in response to television advertising. PITLA's operators screened the calls, a referral department determined whether the claims were bona fide (considering injury, negligence, insurance coverage, and attorney involvement), and referrals were distributed to lawyer-members on a rotation basis, with members able to buy more rotation slots for more referrals; potential consumers could not obtain the lawyer-members' names.

The opinion applied DR 2-103(D)(3), under which a lawyer may participate in a lawyer referral service operated, sponsored, or approved by a bar association. Because PITLA was a lawyer referral service that was not operated, sponsored, or approved by a bar association, the opinion concluded it was improper for lawyers to participate in it.

Currency note

Vacated. The Board of Professional Responsibility vacated Formal Ethics Opinion 90-F-122 on September 11, 2015, "due to changes in the law or rules." Before that, the opinion was amended by Formal Ethics Opinion 90-F-122(a) on October 23, 1990, following litigation and a settlement under which PITLA could operate in Tennessee as a joint advertising cooperative rather than a referral service. A vacated opinion has no continuing force and is not the Board's current guidance. It is reproduced and summarized here only as a historical research record. Do not rely on it as current; the current advertising and referral rules are at Tennessee RPC 7.1 through 7.3. Verify the current rules before acting.

Common questions

Q: Could a Tennessee lawyer join a private, for-profit lawyer referral service?

A: As originally issued, no. The opinion concluded that DR 2-103(D)(3) permitted participation only in a referral service operated, sponsored, or approved by a bar association, and PITLA was not.

Q: Did this opinion remain in force?

A: No. It was amended by 90-F-122(a) in October 1990 after PITLA sued the Board and the parties settled, and the Board vacated it in 2015. It is preserved here only as a historical research record.

Q: What made PITLA a referral service in the Board's view?

A: The opinion described PITLA screening personal-injury callers generated by advertising and distributing them to fee-paying lawyer-members on a rotation basis, with consumers unable to obtain the members' names, which the Board treated as a lawyer referral service under DR 2-103(D).

Background and rules framework

The opinion interpreted former DR 2-103(D)(3), which limited the referral services a lawyer could participate in to those operated, sponsored, or approved by a bar association. The modern analogs are Model Rule 7.2 / Tennessee RPC 7.2 (a lawyer may pay the usual charges of a qualified lawyer referral service) and Model Rule 7.3 / Tennessee RPC 7.3 (solicitation).

Citations and references

Rules of Professional Conduct (former Code):

• DR 2-103(D)(3) (participation limited to a bar-association-approved lawyer referral service). Modern analog: Model Rule 7.2 / Tennessee RPC 7.2

Other opinions cited:

• Tennessee Formal Ethics Opinion 90-F-122(a) (amending this opinion after the PITLA settlement)

See also

• Tenn. Ethics Op. 90-F-122(a): PITLA as a Joint Advertising Cooperative
• AL Ethics Op. 1997-01: Paying a National Attorney-Network Fee
• AZ Ethics Op. 95-13: For-Profit Referral Networks

Source

• Landing page: https://www.tbpr.org/ethic_opinions/90-f-122

Original opinion text

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

90-F-122 - Vacated*

*Vacated by the Board of Professional Responsibility on September 11, 2015 due to changes in the law or rules.

Formal Ethics Opinion 90-F-122

Inquiry is made concerning the propriety of lawyers participating in a lawyer referral service promoted and operated by a private company.

The Personal Injury Trial Lawyers Association, also known as PITLA, U.S.A., Inc. (PITLA) is a private company which markets a lawyer referral service structured for personal injury lawyers. PITLA solicits a limited number of lawyers to pay position expenses and enrollment, production and advertising fees in exchange for referral of legal consumers who telephone their central answering service as a result of television advertising.

The advertising is designed to generate a substantial volume of screened personal injury referrals for the lawyer-members. PITLA maintains nationwide operators on a 24 hour, 7 day a week basis to screen the calls and then relay the calls to a PITLA referral assistant. The referral department then determines whether the referrals are bonafide; considering such factors as whether there has been an injury due to negligence, whether there is insurance coverage, and whether there is attorney involvement. The referral department then refers the calls to lawyer-members on a rotation basis. Lawyer-members may acquire as many rotation slots or positions as they desire by paying a fixed fee for each slot or position. The more rotation positions purchased, the greater the opportunity for referrals. Participation is limited by market size. Potential consumers are unable to obtain the names ofthe lawyer-members.

Disciplinary Rule 2-103(D)(3) of the Code of Professional Responsibility states that a lawyer may participate in "a lawyer referral service operated, sponsored, or approved by a bar association."

PITLA, U.S.A., Inc. (PITLA) is a lawyer referral service. It is not operated, sponsored or approved by a bar association. It is improper for lawyers to participate in the lawyer referral service promoted and operated by PITLA.

This 9th day of March, 1990.

ETHICS COMMITTEE:

/s/ Thomas H. Rainey

/s/ W. J. Michael Cody

/s/ Walker T. Tipton

APPROVED AND ADOPTED BY THE BOARD