Ethics Opinion

Opinion No. 81-6

June 1981

Summary: An attorney is a member of the LRS (Lawyer Referral Service) of the MBA and receives a form indicating that a person has been referred to him for a legal consultation involving one of 24 substantive law areas. Even though a reasonable period of time to enable the inquirer to contact the attorney may have elapsed, the attorney is prohibited by DR 2-103 from telephoning or writing the person to find out whether he is still interested in receiving legal advice for the question for which the person initially contacted LRS. Such an inquiry may, however, be made by the LRS.

Facts: The Massachusetts Bar Association advertises a Lawyer Referral Service for persons seeking legal advice. The LRS staff undertake a threshold intake screening of persons telephoning the MBA to determine if a problem warrants a referral to an attorney. If the problem is not a legal one but does require the assistance of another entity or agency, such as the Division of Insurance or the Department of Mental Health, then the inquirer is referred to the relevant agency. If a legal question is involved, the LRS intake person determines which of 24 substantive areas of law are applicable and then assigns the person to the next attorney on the list in the relevant substantive area, unless the inquirer desires an attorney in a specific geographic area. (Attorneys participating in the LRS designate those areas in which they are competent.) A two-part notice of referral form, which contains a space for the telephone number of the inquirer, is completed, and the form is sent to the attorney to whom the inquirer was referred. The caller's telephone number is not required as a matter of course, and the office policy is not to request a telephone number in any domestic relations matter.
Forty percent of the prospective clients referred to LRS attorneys are considered "no shows." The LRS asks whether an attorney who is a member of the MBA's LRS may contact by telephone a prospective client referred to him or her by the staff of LRS after receiving notice of the client's name on the LRS referral slip and after a reasonable period of time elapses with no contact from the prospective client. We assume that the only purpose of contacting the prospective client is to inquire whether the person still seeks legal advice for the problem he initially discussed with the LRS staff.

Discussion: There are ethical considerations which point to the obligations of lawyers to make legal services available to persons of limited education or means and persons who have little or no contact with lawyers. See EC 2-7. In addition, EC 2-15 states that:
Use of a lawyer referral system enables a layman to avoid an uninformed selection of a lawyer because such a system makes possible the employment of competent lawyers who have indicated an interest in the subject matter involved. Lawyers should support the principle of lawyer referral systems and should encourage the evolution of other ethical plans which aid in the selection of qualified counsel.
On the other hand, DR 2-103 provides in pertinent part:
Recommendation or Solicitatlon of Professional Employment: 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 .... 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 person contacting the LRS with a legal problem clearly has not sought the advice of a particular lawyer. The purpose of DR 2-103 is to prohibit solicitation of employment by the attorney of the client, unless the attorney has been first contacted by the client. An inquiry by the lawyer, whether by telephone or by mail about why he or she has not heard from the prospective client seems to us to fall within the purpose of the prohibition. If there is some worry about possible misunderstanding by the client about how to reach the lawyer, then the inquiry should come from the LRS and not the lawyer, provided that the LRS wishes to undertake that additional burden.

Permission to publish granted by the Board of Delegates on April 14, 1981.
As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.