Can a Washington lawyer join a commercial networking and referral organization without violating RPC 7.2 if the organization drops mandatory referral requirements and adds safeguards?

Plain-English summary

The inquirer asked the committee to reconsider Informal Opinion 1975, which had concluded that participating in a commercial networking organization with mandatory referral requirements violates RPC 7.2 and likely RPCs 7.1 and 7.3. The basis for reconsideration was that the organization had amended its policies: attorney members are excluded from any requirement to provide referrals; the organization conspicuously posts guidance on representations of a lawyer's services that could be misleading and cautions against unsubstantiated claims; it posts guidance that a referred prospective client must affirmatively contact the attorney before further communication; it posts guidance that a member should not recommend consulting a member attorney before the person has indicated a need for legal services (because the member could be seen as the attorney's agent in soliciting); and each member signs a document agreeing to abide by the rules. The committee also understood that the organization does not require members to bring potential new members to meetings.

On the facts originally stated, the committee left Informal Opinion 1975 unchanged. But assuming the accuracy of the recited facts and that the organization implements and enforces the rules, the committee took the view that membership in this organization, or any other networking organization adopting similar rules, would not itself violate RPC 7.2, which prohibits a lawyer from giving anything of value for a referral. The committee added a caution: because the organization's mission, marketing messages, and history are likely to continue to pose risks of RPC violations, attorneys must be vigilant that their involvement remains consistent with all applicable RPCs, particularly RPCs 7.1, 7.2, 7.3, and 7.4.

In practice

Under this opinion, and under the advertising and solicitation rules as they stood in 2006, the committee tied its conclusion to the specific reforms: the absence of mandatory referrals, the posted guidance (including the requirement that a prospective client make the first contact), and the signed member acknowledgments. The opinion holds that, with those rules adopted and enforced, mere membership would not itself violate RPC 7.2, while the committee cautioned that the organization's mission and marketing continue to pose RPC risks, so members must ensure their own conduct complies with RPCs 7.1, 7.2, 7.3, and 7.4. The opinion does not disturb Informal Opinion 1975 on its original facts. Washington restructured RPC 7.1 through 7.5 in a comprehensive 2006 revision, so current rule numbering should be checked.

Common questions

Q: Can a Washington lawyer join a business networking group that exchanges referrals?

A: Per this opinion, yes, if the group adopts and enforces the described safeguards. The committee concluded that membership in such a reformed organization would not itself violate RPC 7.2.

Q: What changes made the difference from the earlier opinion?

A: The committee pointed to removing any mandatory referral requirement for attorney members, posting guidance against misleading claims and requiring a prospective client to make first contact, and having members sign an acknowledgment to abide by the rules.

Q: Does the opinion give members a clean bill of health?

A: No. The committee cautioned that the organization's mission, marketing, and history continue to pose RPC risks, and that members must remain vigilant under RPCs 7.1, 7.2, 7.3, and 7.4.

Q: Is Informal Opinion 1975 overruled?

A: No. The committee left Informal Opinion 1975 unchanged on the facts originally stated; the new view applies to the reformed policies described in this inquiry.

Background and rules framework

The opinion interprets Washington's advertising and solicitation rules as they stood in 2006: RPC 7.2 (the counterpart to Model Rule 7.2), which prohibits giving anything of value for a referral, together with RPC 7.1 (false or misleading communications), RPC 7.3 (solicitation), and RPC 7.4. It reconsiders the committee's earlier Informal Opinion 1975 in light of the networking organization's amended policies.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.2 / Washington RPC 7.2 (giving anything of value for a referral)
• Model Rule 7.1 / Washington RPC 7.1 (false or misleading communications)
• Model Rule 7.3 / Washington RPC 7.3 (solicitation); Washington RPC 7.4

Other opinions cited:

• WSBA Informal Opinion 1975 (participation in a commercial networking organization with mandatory referrals; left unchanged on its original facts)

See also

• WSBA Ethics Op. 1071: Paid Lawyer Referral Service
• WSBA Ethics Op. 1246: Group Marketing Programs
• WSBA Ethics Op. 1188: Referrals From a Client's Employer

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1558

Original opinion text

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

Advisory Opinion: 2123
Year Issued: 2006
RPC(s): RPCs 7.1, 7.2 & 7.3
Subject: Attorney’s participation in networking organization

The inquirer asks the Committee to reconsider Informal Opinion 1975, which opined that it is a violation of RPC 7.2, and likely a violation of RPCs 7.1 and 7.3, to participate in a commercial networking organization that includes mandatory requirements for referrals. The inquirer seeks reconsideration on the basis that the particular organization has amended its policies in the following respects:

1. attorney members are specifically excluded from any requirement to provide business referrals to other members; 2. the organization conspicuously posts appropriate guidance regarding the types of representations of a lawyer’s services that could be considered misleading and cautions members to avoid making any unsubstantiated claims about any attorney member; 3. the organization conspicuously posts appropriate guidance to the effect that a prospective client referred by a member must affirmatively contact the attorney before any further communication can occur; 4. the organization conspicuously posts appropriate guidance to the effect that it is inappropriate for a member to recommend to a person that he or she should consult with a member attorney before that person has indicated a need or desire for legal services, because the member may be deemed to be acting as the attorney’s agent in soliciting the prospective client; and 5. each member signs a written document acknowledging the above rules and guidelines and agreeing to abide by them.

Further, the Committee also understands that the organization does not require members to bring potential new members to meetings.

On the facts stated therein, Informal Opinion 1975 remains unchanged. Assuming, however, the accuracy of the facts recited above and assuming that the organization implements and enforces the above rules and policies, the Committee would be of the view that membership in this organization, or in any other networking organization that adopts similar rules and policies, would not itself violate RPC 7.2, which prohibits a lawyer from giving anything of value for a referral. Because the Committee believes, however, that the organization’s mission, marketing messages and history are likely to continue pose risks of RPC violations, attorneys are cautioned that they must be vigilant to ensure that, based on the particular facts and circumstances, their involvement with such an organization remains consistent with all applicable RPCs, particularly RPCs 7.1, 7.2, 7.3 and 7.4.