Ethics Opinion No. 242
Education of lay public
Is the operation of a lawyer referral service by Bar Association ethical and is the advertising of such service by Bar Association in violation of Canon 27 and 28?
1. LAWYERS REFERRAL SERVICE–A Bar Association may sponsor a lawyers reference service providing it is properly organized and meets certain specified minimum requirements.
2. ADVERTISING–Canon 27 is applicable to advertising by organized bars.
3. ADVERTISING–Canon 27 prohibits the solicitation of professional employment through an organized bar by or on behalf of a particular lawyer through advertising mediums.
4. ADVERTISING–Canon 27 does not prohibit the employment of advertising facilities by an organized bar to acquaint the lay public with the desirability of securing legal services promptly when a legal problem arises, and to apprise the public of the maintenance of a Lawyer’s Reference Service embracing a low_ cost initial consultation fee for a stated duration, the plan under which it operates, and the availability of service.
5. ADVERTISING–A plan or project to educate the lay public with respect to the benefits of legal services should be carried on by the organized bar with a purpose to give the layman beneficial information, to enable lawyers as a whole to render better professional services, to prevent controversy and litigation, and to enhance the public esteem of the legal profession, and should be carried on in a manner in keeping with the dignity and traditions of the profession.
6. SOLICITATION–Volunteering legal information in paid advertisement which may be construed as a bid for professional employment should not be sanctioned.
7. STIRRING UP LITIGATION–Paid advertisements which may seemingly have for their purpose the encouragement of litigation should not be sponsored by a Bar Association.
1. This Committee does not deem it proper nor does it have the space to discuss the plans and organization of a lawyers referral system and the problems relating thereto and we suggest the Handbook prepared by the Standing Committee on Lawyers’ Referral Service of the American Bar Association be consulted in this respect.
In the opinion of the Committee the following minimum requirements must be met in order for a lawyer referral service or panel to comply with ethical requirements of the Oklahoma Bar Association:
a. The service must be sponsored by an organized Bar Association.
b. The panel or members of the referral service must be attorneys in good standing and members of the Oklahoma Bar Association.
c. All members of the Oklahoma Bar Association in the area in which the lawyers referral service is operating must be allowed to qualify and membership on the panel and this area may be limited to the county of its operation.
d. All advertising connected with the panel or service must be sponsored by and in the name of the Bar Association.
e. Referrals must be made on a completely impartial basis.
f. It must be surpervised [sic] by a Committee of lawyers who will see to it that both the public interest and the interest of the bar itself are served.
g. It must not operate or appear to operate for the benefit of any group of lawyers.
h. The financing of the panel must be under the control of the Bar Association setting it up.
i. Records must be kept properly so that both the public and the Bar can be informed of what is being accomplished and must be available to members of the Oklahoma Bar Association at all times.
j. A minimum initial consultation fee for a stated duration may be set by the supervising committee, but any other legal services rendered by the member of the panel to the registrant must be charged on the same basis as to any other client.
k. Members of the panel may be required to assist in financing on a reasonable basis.
This Committee recognizes that there are certain inherent problems which may arise as a result of the operation of the service. These problems must be dealt with as they appear, and we do not propose to lay down in this opinion hard and fast rules, but state that the supervising committee and the sponsoring Bar Association must accept the responsibility for operating the panel or service on an ethical basis.
2. through 7. It will be observed that Canon 27 is directed against the solicitation of professional employment and prohibits advertising therefor. The question, therefore, is whether the canon or the general principles of professional ethics prohibit the employment of advertising facilities to acquaint the layman with the expert service the legal profession is able to render, especially with respect to those matters in which the securing of competent legal advice and assistance in advance of acting will be calculated to insure effectuation of the client’s intentions and desires, the protection of his rights and interests, the compliance with essential legal requirements, and the avoidance of future difficulty and perhaps costly litigation. In other words, is it improper to acquaint the lay public with the wisdom and desirability of employing a lawyer to prevent future trouble or controversy, and possibly costly litigation rather than waiting until one is confronted with difficulty, controversy or litigation?
We recognize a distinction between teaching the lay public the importance of securing legal services preventive in character and the solicitation of professional employment by or for a particular lawyer. The former tends to promote the public interest and enhance the public estimation of the profession. The latter is calculated to injure the public and degrade the profession.
The practice of law is affected with a public interest. Society as a whole, as well as the individual client, is interested in the service rendered by the lawyer because it directly affects the maintenance of order and harmony in business and social relations and the due administration of justice. If the public interest is to be best served the profession must merit and have the confidence and respect of the public. One way to obtain that confidence and respect is to render a more useful professional service.
In carrying out a project to educate the lay public with respect to the benefits of preventive legal services, certain possible evils should be carefuly [sic] guarded against.
First, it should be carried on by the organized bar in order that any semblance of personal solicitation will be avoided.
Second, it should be made plain that the purpose is to give the layman beneficial information, to enable lawyers as a whole to render a better professional service, to promote order in society, to prevent controversy and litigation and to enhance the public esteem of the legal profession, the judicial process and the judicial establishments.
Third, it must in fact be motivated by a desire to benefit the lay public and carried out in such a way as to avoid the impression that it is actuated by selfish desire to increase professional employment; and any plan, however well intended, that on trial fails to convince the lay public that the purpose is to benefit the layman and not to promote professional employment should be promptly abandoned.
Fourth, it should be carried on in a manner in keeping with the dignity and traditions of the profession.
In order to overcome any implication that its principal objective is to secure professional employment for members of the Bar rather than performing its obligation to aid and instruct the public, any articles in local publications concerning the service should be in the name of the Bar Association. No such article should be in the name of any individual nor should mention be made of any individual lawyer.
All such articles or publicity in purpose and effect should be for the intelligent guidance of the public and free from suspicion of any selfish motives of the Bar Association and any of its individual members.
It is our conclusion that advertising by a Bar Association of the lawyers reference service either in newspapers, radio, television, or in telephone directories, if kept within the limitations and the objects and purposes above stated, does not violate Canon 27 and no ethical impropriety will result.
See Opinions 13, 31, 54, 92, 121, 179, 205, 227, and 291 of the Committee on Professional Ethics and Grievances of the American Bar Association. Also see Handbook prepared by the Standing Committee on Lawyers Referral Service of the American Bar Association, 4th Edition, 1958.