Ethics Advisory Opinion No. 07-01

Issued March 9, 2007
¶ 1. Issue:
May a lawyer purchase the exclusive right to referrals generated from the membership base of an organization whose members from time to time may have need of the legal services offered by that lawyer?

¶ 2. Opinion: The proposed arrangement, which contemplates the exclusive funneling of referrals to one lawyer or firm, is not permitted, as it violates Rule 7.2(b), which prohibits a lawyer from giving anything of value to a person for recommending the lawyer’s services. The fact that the recommendation is made by an organization does not change the outcome here.
¶ 3. Facts: A Utah for-profit organization provides an array of services to its members, including assistance in finding legal representation for its members for various circumstances, including immigration, criminal defense and personal injury following an automobile accident. This organization has solicited a Utah law firm to purchase the exclusive right to receive referrals generated by its membership base, for members who need legal consultation following an automobile accident.
¶ 4. Analysis: Rule 7.2(b) of the Utah Rules of Professional Conduct sets out the basic rule that applies to the issue presented:
(b) A lawyer shall not give anything of value to a person for recommending the lawyer’s services; except that a lawyer may:
(1) pay the reasonable costs of advertisements or communications permitted by this Rule;
(2) pay the usual charges of a legal service plan or a lawyer referral service;
(3) pay for a law practice in accordance with Rule 1.17; or
(4) divide a fee with another lawyer as permitted by Rule 1.5(e).1
This fundamental rule is elaborated upon by Comment [5] to the Rule, which further states: “Lawyers are not permitted to pay others for channeling professional work.”2 Under the plain language of this Rule and the explanatory comment, a lawyer would be prohibited from purchasing exclusive referral rights from the organization, because that would constitute paying another person for recommending the lawyer’s services.3
¶ 5. Rule 7.2(b) contains several exceptions to this blanket prohibition. Subsection 7.2(b)(2) permits a lawyer to “pay the usual charges of a legal service plan or lawyer referral service.” This provision of the Utah Rules of Professional Conduct differs from the American Bar Association Model Rule, which permits a lawyer to pay the usual charges of a legal service plan or a “not-for-profit or qualified” lawyer referral service.4 It would be inappropriate to conclude, however, that the difference between the Utah Rule and the ABA Model Rule was intended to permit a lawyer to avoid the prohibition of Rule 7.2(b) through the use of an organization that is not, in fact, a “lawyer referral service” in even the most colloquial sense of the term.
¶ 6. Comment [6] to Rule 7.2 defines a lawyer referral service as “an organization that holds itself out to the public to provide referrals to lawyers with appropriate experience in the subject matter of the representation.” At a minimum, Rule 7.2(b)(2) requires that the lawyer referral service be available to the public and that it provide referrals to multiple lawyers and law firms, not to a single lawyer or a single law firm.
¶ 7. Comment [6] to Rule 7.2 also defines a legal service plan as “a prepaid or group legal service plan or similar delivery system that assists prospective clients to secure legal representation.” Thus, the “plan” under Rule 7.2(b)(2) must be a provider of legal services to plan members using the services of licensed lawyers.5 The organization at issue provides no legal services to its members; the lawyers do not provide legal services “through the plan.”
¶ 8. Conclusion: The organization in this case is not operated as a public service, but rather channels legal work to a single lawyer or firm who has paid the organization for that privilege. The organization is not, therefore, a “legal service plan” or a “lawyer referral service” within the meaning of Rule 7.2(b)(2), and the proposed exclusive funneling of referrals to one lawyer or firm that has paid for the privilege violates Rule 7.2(b)’s prohibition against giving anything of value to another person for recommending a lawyer’s services.6
Footnotes
1 Utah Rules of Professional Conduct 7.2(b) (2006).
2 Id. cmt. [5].
3 “Person” in Utah is generally defined to include any “individual, firm, company, association or corporation.” See, e.g., Utah Code Ann. §§ 48-2a-101(12); 76-1-601 and 78-27-23 (2006).
4 ABA Model Rules of Professional Conduct 7.2(b)(2) (2002).
5 Utah Rules of Professional Conduct, Rule 7.3, Cmt. [8]. Comment [8] describes lawyers participating in a group or prepaid legal services plan as “provider[s] of legal services through the plan.”
6 As we have concluded that the organization at issue is neither a prepaid or group legal services plan nor a lawyer referral service for which a lawyer may pay the “usual charges” pursuant to Rule 7.2(b), we do not reach the issue of whether this organization violates rule 7.3(a) through its use of in-person or other real-time communications to solicit memberships to the organization.

Ethics Advisory Opinion No. 07-02

(Approved February 25, 1993)
Issue:
May an attorney give a “second opinion” on a legal matter, when approached by a non-client who is represented by counsel?

Opinion: Rule 4.2 of the Rules of Professional Conduct prohibits a lawyer, “[i]n representing a client,” from “communicat[ing] about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter.” A lawyer does not violate the letter or purposes of this rule by rendering a second opinion on a legal matter, when the lawyer is not “representing a client” on the same subject. However, the lawyer should make every effort neither to impair the first attorney-client relationship nor to use the consultation as a means of soliciting the represented party.
Rationale: Rule 4.2 of the Rules of Professional Conduct prohibits a lawyer, in representing a client, from communicating with a party the lawyer knows is represented by another lawyer in the matter, “unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” The main thrust of this rule is “to prevent situations in which a represented party may be taken advantage of by adverse counsel; . . .”1 Of course, an attorney cannot give advice to an unrepresented person with the exception of suggesting that he or she seek counsel.2
A lawyer does not violate the letter or purposes of Rule 4.2 by rendering a second opinion to a represented party, when the lawyer is not “representing a client” in the same matter. Under its express terms, Rule 4.2 applies only to situations in which the lawyer is “representing a client” in making the communications. Moreover, the situation is not one “in which [the] represented party may be taken advantage of by adverse counsel; . . .”3 The Ethics Advisory Opinion Committee is, therefore, of the view that an attorney does not violate the Rules of Professional Conduct by rendering a second opinion, when the lawyer is not representing a client in the same matter.
This conclusion is supported by In re Mettler,4 where the Supreme Court of Oregon addressed the scope of DR7-104(A)(1), the predecessor to Rule 4.2. DR7-104(A) provided:
During the course of his representation of a client a lawyer shall not: (1) Communicate or cause another to communicate on the subject of the representation . . . with a person he knows to be represented by a lawyer on that subject . . . .
The court concluded that the phrase “during the course of his representation of a client” acts “as a threshold requirement for unethical conduct” and that a lawyer, therefore, cannot violate the rule unless he or she communicates with a represented person in the course of representing a client.5
This conclusion is also consistent with the ethics advisory opinions of other jurisdictions. In 1987, Kentucky considered the issue and concluded that a lawyer may provide legal advice to a person who is represented by counsel and is seeking a second opinion. The opinion cautioned, however, that the lawyer must make every effort neither to impair the first relationship nor to use the consultation as a means of soliciting the client. The opinion also suggested that the lawyer should obtain the party’s consent to consult the first lawyer so that all significant facts can be taken into account in rendering the second opinion.6 In Philadelphia, a lawyer who is approached by a represented party may ask the party to review how his or her present lawyer is handling the case. However, the opinion advises lawyers to be prudent in questioning the represented parties and to exercise discretion in evaluating the work of other lawyers.7
The prudential concerns noted in these opinions, while not expressly addressed in the Rules of Professional Conduct, are consistent with the spirit of the rules as well as the candor, discretion, and fair dealing that should characterize the legal profession. As second opinions become more acceptable, a policy of disclosure to the first attorney could prevent undue influence or overreaching by the attorney rendering the second opinion. Further, an attorney may be able to give a better evaluation if he or she communicates with the first attorney as well as with the client. The purposes of Rule 4.2, however, are not served by restricting an individual’s ability to discuss his or her case with an attorney who is not connected with the matter.
Footnotes
1. Wright v. Group Health Hosp., 103 Wash. 2d 192, 691 P.2d 564, 567 (1984) (en banc) (construing Code of Professional Responsibility DR7-104(A)(1)).
2. Rules of Professional Conduct 4.3(a).
3. 691 P.2d at 567.
4. 305 Or. 12, 748 P.2d 1010 (1988).
5. Id. at 1011-12.
6. Kentucky Ethics Opinion No. 325 (1987).
7. Philadelphia, Pa., Bar Ethics Opinion No. 86-137.