Can a lawyer pay a nonprofit organization to be put on its referral list and use its seal in advertising?

Plain-English summary

The inquirer was a board member of a nonprofit organization dedicated to support and advocacy for a class of injured individuals. The organization proposed to offer its members free legal consultations by referring them to law firms that make financial contributions to it. In exchange for a lawyer's "financial sponsorship," the organization would place the lawyer on its Attorney Resource List, refer members on a rotating basis, let the lawyer use the organization's seal on letterhead and advertisements, and acknowledge the lawyer in its newsletters, seminars, and conventions. The lawyers would have no direct control over the organization's communications to its members.

The committee concluded the proposed referral relationship is not proper, identifying potential violations of four advertising and solicitation rules. Because the lawyers cannot control the organization's communications, there is a substantial risk those communications about the lawyers' services would be false or misleading under RPC 7.1. RPC 7.2(c) bars giving anything of value for referrals, and the committee said it would be improper for a lawyer to pay the contributions in light of the proposed referrals, because the organization would not qualify as a not-for-profit lawyer referral service or other legal service organization under that rule. The organization's intended in-person and direct communication with members to refer them to paying lawyers would, if done by the lawyer, be barred by RPC 7.3, and so would be barred by RPC 8.4(a) when done by the organization on the lawyer's behalf. Finally, the organization's statements could violate RPC 7.4's limits on identifying a lawyer as an "expert" or "specialist," because the organization is not an evaluation or testing organization under RPC 7.4(b).

Currency note

This opinion was issued in 2003, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct, which reorganized the advertising and solicitation rules (RPC 7.1 through 7.5), and before later amendments to RPC 7.2 and 7.3. Subsequent rule amendments or later opinions may have changed the analysis, including the treatment of payments for referrals and qualified referral services. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

In practice

Under the Washington advertising and solicitation rules as they stood at the time of the opinion, the committee treated the pay-to-be-referred arrangement as improper on several independent grounds: the lawyer's inability to control the organization's communications (RPC 7.1), paying contributions in exchange for referrals from an organization that is not a qualified not-for-profit referral service (RPC 7.2(c)), the organization's in-person solicitation of members on the lawyer's behalf (RPC 7.3 with 8.4(a)), and the risk of improper expert or specialist claims (RPC 7.4). The committee framed these as potential violations arising from the proposal as described, noting the materials submitted appeared incomplete.

Common questions

Q: Can a lawyer pay a nonprofit to be referred to its members?

A: The committee said no. RPC 7.2(c) bars giving anything of value for referrals, and the committee concluded it would be improper to pay the contributions in light of the proposed referrals, because the organization would not qualify as a not-for-profit lawyer referral service or other legal service organization under that rule.

Q: Why does the lawyer's lack of control over the organization's messaging matter?

A: Because the lawyers would have no direct control over the organization's communications, the committee said there is a substantial risk those communications about the lawyers' services would be false or misleading in violation of RPC 7.1.

Q: Does the organization's direct contact with members create a solicitation problem?

A: Yes. The committee said the organization's in-person and direct communication with members to refer them to paying lawyers would be barred by RPC 7.3 if done by the lawyer, and therefore barred by RPC 8.4(a) when done by the organization on the lawyer's behalf.

Q: Can the organization describe its listed lawyers as experts or specialists?

A: The committee said RPC 7.4's prohibition on identifying a lawyer as an "expert" or "specialist" may be violated, because the organization is not an evaluation or testing organization as contemplated by RPC 7.4(b).

Background and rules framework

The opinion interprets Washington's advertising and solicitation rules, which correspond to the Model Rules of the same number as they then existed: RPC 7.1 (Model Rule 7.1, communications concerning a lawyer's services that must not be false or misleading); RPC 7.2(c) (Model Rule 7.2, advertising, including the bar on giving something of value for recommending the lawyer's services, with exceptions for qualified referral services); RPC 7.3 (Model Rule 7.3, solicitation and direct contact with prospective clients); and RPC 7.4 (Model Rule 7.4, communication of fields of practice and limits on "specialist" or "expert" claims). RPC 8.4(a) (Model Rule 8.4(a)) makes it misconduct to violate the rules through the acts of another, which the committee applied to solicitation carried out by the organization for the lawyer.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.1 / Washington RPC 7.1 (false or misleading communications about a lawyer's services)
• Model Rule 7.2 / Washington RPC 7.2(c) (giving something of value for referrals; qualified referral services)
• Model Rule 7.3 / Washington RPC 7.3 (solicitation; in-person and direct contact)
• Model Rule 7.4 / Washington RPC 7.4 (fields of practice; "specialist" and "expert" claims)
• Model Rule 8.4(a) / Washington RPC 8.4(a) (violating the rules through the acts of another)

See also

• WSBA Ethics Op. 2043: Organization Seeking Lawyer Support
• WSBA Ethics Op. 1071: Paid Lawyer Referral Service
• WSBA Ethics Op. 1062: Soliciting Referrals From Lawyers

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1280

Original opinion text

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

Advisory Opinion: 2038
Year Issued: 2003
RPC(s): RPC 7.1, 7.2(c), 7.3, 7.4, and 8.4(a)
Subject: referrals from a nonprofit (nonlegal) organization for contributions from lawyers to organization

The inquirer is a board member of a nonprofit organization. The organization is dedicated “to the prevention, support, education and advocacy on [a certain class of injury] matters.” The organization seeks to pass a resolution to encourage attorneys to participate in the organization. The organization seeks to offer its members free legal consultation from “competent and qualified” attorneys by referring its members to law firms who make a contribution it.

In consideration for “financial sponsorship” by an attorney, the organization would:

• Place the attorney/law firm on the organization’s Attorney Resource List; • Refer the attorney/law firm to prospective clients on a rotating basis from the Attorney Resource List; • Allow the attorney/law firm to use the organization’s seal on the attorney’s letterhead and advertisements; and • Acknowledge the attorney in organization’s newsletters, annual seminars, conventions, etc.

In short, in exchange for an attorney’s financial participation in the organization, the attorney would obtain referrals and other forms of advertisement from it.

Based on the proposed resolution provided (note that only one page of the resolution was provided), it does not appear that the lawyers will have any direct control over the communications made by the organization’s staff to its members.

The committee notes that the materials submitted appear incomplete. Notwithstanding, the committee is prepared to issue an informal opinion based on the materials as provided.

The attorney requests whether a non-lawyer organization may offer its members free legal consultation from competent and qualified attorneys by referring its members to law firms who make financial contributions to the organization.

The Committee does not believe that the referral relationship proposed by the organization is proper because there are potential violations of RPC 7.1, 7.2(c), 7.3, 7.4, and 8.4(a).

Because the lawyers will not have any direct control over the communications made to organization’s members by its staff, there is a substantial risk that communications concerning the lawyers’ services may violate the restrictions of RPC 7.1, which prohibits false or misleading communications about a lawyer’s services.

In addition, RPC 7.2(c) bars referrals in return for anything of value provided by the attorney. It would be improper for a Washington lawyer to pay the annual contributions to the organization – which contributions are controlled by organization – in light of the proposed referrals. The organization arguably, is not not-for-profit service, and certainly would not qualify as a not-for-profit lawyer referral service or other legal service organization as identified in RPC 7.2(c).

Furthermore, RPC 7.3 when read with RPC 8.4(a) may prohibit the relationship contemplated between Washington lawyers and the organization. The organization apparently intends to have in-person and direct communication with members and their families in part for the purposes of referring their members and families to lawyers who have paid annual contributions. Such direct contact would be barred by 8.4(a) if engaged in by the attorney under RPC 7.3(a) and therefore would be barred by RPC 8.4(a) if done by the organization on behalf of the attorney.

Lastly, RPC 7.4’s prohibition on the identification of a lawyer or law firm as an “expert” or a “specialist” may be violated by statements made by the organization to its members and the general public. The organization is not an evaluation or testing organization as contemplated by RPC 7.4(b), and the risks of organization’s referrals violating RPC 7.4 is substantial.