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 95-11
Attorney A has been approached by a membership organization (Association) and offered the position of director of the Association's legal services division, which is in the process of being formed.
The Association offers certain benefits (goods and services) to its members and proposes to add the legal services division as an additional benefit of membership. The Association proposes to hire, on a salaried basis, a certain number of telephone operators to screen calls from members. These telephone operators would include both attorneys admitted to practice in South Carolina and persons who are not attorneys.
The Association proposes to publish a legal services directory in which attorneys admitted to practice in South Carolina would pay an annual fee to the Association for the privilege of having their individual names and/or firms listed in the directory. These attorneys would not pay any other fee or compensation to the Association.
The Association proposes that telephone operators for the legal services division would answer calls from members of the Association who are seeking the services of an attorney. After the member describes the situation, the telephone operator would provide a brief, generic explanation of the types of services an attorney could provide in that specific situation. The telephone operator would then provide the member with the names of those attorneys in the member's locality who have paid the annual fee to have their name and/or firm listed in the Association's legal services directory. The telephone operator would not recommend one attorney over another and would offer no specific legal advice. The Association would then mail a copy of the legal services directory to the member.
The Association proposes that the transaction between the member and the attorney the member selects would be strictly confidential between those two parties. The Association would not intervene or exhibit any control or influence over the relationship between the member and attorney. The member and attorney would be responsible for directly negotiating the extent of the legal services and the fees for such services.
The Association proposes that it would not assume any responsibility or liability for the services provided by the attorney and would not collect any additional fees from any attorney for any referrals.
Questions:
1. May an attorney become employed by the Association as either director of the legal services division or as a telephone operator?
2. May an attorney pay an annual fee to become listed in the Association's legal services directory without violating Rule 7.2 of the Rules of Professional Conduct?
3. Is the publication of the Association's legal services directory subject to the requirements of Rule 7.3(c) of the Rules of Professional Conduct?
4. If the answer to Question 3 is in the affirmative, would the requirements of Rule 7.3(c) be satisfied if the wording required by that Rule is included on the face of the legal services directory?
Summary:
1. An attorney may become employed by the Association as either director of the legal services division or as a telephone operator.
2. An attorney does not violate Rule 7.2 of the Rules of Professional Conduct by paying an annual fee to become listed in the Association's legal services directory.
3. The publication of the Association's legal services directory is not subject to the requirements of Rule 7.3(c) of the Rules of Professional Conduct.
Opinion:
1. Rule 1.13 of the Rules of Professional Conduct allows an attorney to be employed or retained by an incorporated or unincorporated organization. Under the circumstances here, there is little difference between Attorney A and an attorney employed by the legal department of a corporation. An attorney may further be employed as a telephone operator by the Association, provided the contact between the attorney and member conforms to the boundaries proposed by the Association and does not violate Rule 7.3.
2. Rule 7.2(a) permits an attorney to advertise services through the public media, including a legal directory, provided the communication is not false or misleading. Publication and distribution of the Association's legal service directory complies with Rule 7.2 because it is intended to assist a segment of the public (members of the Association) in obtaining legal services and to expand public information about legal services.
Rule 7.2(c) generally prohibits an attorney from giving anything of value to a person for recommending the lawyer's services. In this situation, the member will be furnished the names of all attorneys in the members local area who have purchased a listing in the legal services directory. The Association does not recommend the services of any attorney or channel work to a specific attorney. The member, without interference or influence from the Association, will determine which attorney, if any, to professionally employ.
3. Rule 7.3 regulates direct solicitation of professional employment between an attorney and a prospective client, due to the potential for abuse inherent in such a situation. Under the circumstances here the Association will simply provide to those members requesting legal services a directory which lists the name, address, and areas of practice of the attorneys included therein. Consequently, due to the lack of direct contact between the attorney and member, the specific concerns addressed by Rule 7.3 (a) regarding abuse and overreaching whenever an attorney directly contacts a prospective client are avoided. Clearly, the potential for abuse is practically nonexistent. Further, the requirement in Rule 7.3(c)(1) that certain communications be marked "ADVERTISING MATERIAL" does not apply to communications sent in response to a request by a potential client. In this situation, the member would first contact the Association and request legal assistance before receiving the directory.