Ethics Opinion

Opinion No. 80-9

September 1980

Summary: The committee declines to give advice regarding unclear portions of interim advertising and solicitation rules as they apply to two plans for providing legal services, because the Supreme Judicial Court's own committee on those rules has been asked to give recommendations for change, and because the aspects of the plans about which inquiry has been made may possibly have constitutional protection.

Facts: (1) A New York law firm, which is establishing offices in other states, desires to have Massachusetts attorneys participate on the following basis. Initial consultations shall be handled without charge, but the local attorneys shall receive 80 percent of the fee on all matters handled in conjunction with the New York firm. The client will pay an annual retainer of $25. The New York firm intends to advertise on television as well as through other media.
(2) A consulting organization administers a preventive law program. For $28 a year, a member of the plan has the use of "unlimited advice and consultation via a toll-free WATS line with a consulting attorney (one per state) who will draft one "single" will per family per year, provide simple document review for a member, and solve simple problems if he can, at his discretion. For any problem that is not covered by the services of the consulting attorney, thecConsulting attorney will provide names of qualified referral attorneys. To be a referral attorney, a lawyer must agree to provide services of a "personal nature" at the hourly guaranteed maximum for services. This does not cover business- or profit-related matters, contingency fee situations or fees set by statutes. Lawyers may charge their usual fees on these matters. There appears to be no fee paid to the consulting organization by the referral attorney.
(3) An organization of business owners and professional persons trade among each other without using cash. The "seller" of a product receives a credit on the books of the trade exchange equal to the prevailing price of the product. A "purchaser" of the product or services is debited with an amount equal to the seller's credit plus 5 percent in trade dollars and 5 percent in cash. One of the main purposes of the exchange is promoting new business: "For every 500 members ... you will get about 1700 new customers consisting of other members, their families and friends." The organization limits the number of professionals who can apply. There is a fee of $200 to join and annual dues of $100.
Discussion: In regard to the program of the New York firm, MBA Opinion No. 79-3 answers the inquiry.
We are uncertain about the other two plans that have been presented. On July 1, 1979, the Supreme Judicial Court adopted interim amendments to the Canons of Ethics relative to lawyer advertising. The Supreme Judicial Court also established a committee to make further recommendations to the court. We have delayed answering these inquiries in the hope that the report of that committee and the court's response to it might clarify some problems we have with the interim rules. Since that report has not yet appeared we set forth the nature of our uncertainty with respect to these two plans.
1. The consulting organization. The last sentence of DR 2-103, as amended, states: "This Disciplinary Rule does not prohibit a lawyer or his partner or associate or any other lawyer affiliated with him or his firm from requesting referrals from a lawyer referral service operated, sponsored or approved by a bar association or from cooperating with any other qualified legal assistance organization." A "qualified legal assistance organization" is defined as follows: "a legal aid, public defender, or military assistance office; a lawyer referral service operated, sponsored, or approved by a bar association; or a bona fide organization that recommends, furnishes or pays for legal services to its members or beneficiaries, provided the office, service, or organization receives no profit from the rendition of legal services, is not designed to procure financial benefit or legal work for a lawyer as a private practitioner, does not infringe the individual member's freedom as a client to challenge the approved counsel or to select outside counsel at the client's expense, and is not in violation of any applicable law."
A substantial question exists as to what is meant by "profit" in this rule and what is an organization that "is not designed to procure financial benefit or legal work for a lawyer as a private practitioner."
2. The barter group. We should note that our prior Opinion No. 78-5 should be regarded as superseded because DR 2-103, on which it was based, has since been amended by the Supreme Judicial Court. The first sentence of the current version of DR 2-103 now states: "A lawyer shall not, by direct mail or other form of personal contact, recommend employment, as a private practitioner for a fee, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer." See also DR 1-102(A)(2), which forbids a lawyer from circumventing a Disciplinary Rule through the actions of another.
A substantial question exists whether a barter group is prohibited from recommending lawyers' employment in this fashion under the combination of the two quoted rules and there is also doubt whether such a prohibition would violate the First Amendment.
The purpose of this committee is to give advice when the text of the disciplinary rule is not wholly clear. Despite the fact that the interim Disciplinary Rules could be read to apply to both programs, we have concluded that for two reasons we should not issue an opinion interpreting these rules in this situation. The first is that the Supreme Judicial Court revised DR 2 last year to deal with the most obvious corrections required by the recent series of First Amendment decisions of the Supreme Court of the United States dealing with matters of freedom of association, advertising and solicitation. The Supreme Judicial Court in so doing specifically asked for further recommendations from its own committee regarding other aspects of DR 2 that it did not change. The issues raised by these inquiries relate to matters about which there is substantial doubt and which we expect the committee to address. The second reason for our reluctance is that the decisions of the Supreme Court of the United States suggest that the aspects of these two plans that raise questions under the interim Disciplinary Rules may possibly have constitutional protection. We therefore believe that in such a situation we should refrain from issuing an advisory opinion until the situation with respect to the Disciplinary Rules and the constitutional requirements is clearer.

Permission to publish granted by the Board of Delegates on September 17, 1980. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.