Ethics Opinion 261: Emergency Room Referrals by a Law School Clinical Program

Opinion 261

Emergency Room Referrals by a Law School Clinical Program

Rule 7.1(b)(2) and (3) does not apply to a law school clinical program’s referrals of emergency room patients, who have been the victims of spouse abuse, either to counsel with which none of the law students making the referrals is affiliated or to a list of several counsel where some of the law students are affiliated with one of the counsel on the list and where the victims do not have to select a particular counsel while in the emergency room.

Applicable Rule

Rule 7.1 (Communications Concerning a Lawyer’s Services)

Inquiry
Inquirers are the Director and two members of an organization that provides pro bono legal assistance to battered women. The organization, which is staffed by law students and supervised by a law professor, has developed a new Program that will provide legal information to battered women in the emergency room of a local hospital. This information will include advice on the availability of legal remedies and representation. In addition, if a patient requests, one of the Program’s counselors will refer the patient to sources of legal assistance. If the patient has financial resources that render her ineligible for pro bono assistance, she will be referred to fee-charging attorneys. None of the Program’s counselors will be affiliated with these fee-charging attorneys. If the patient is eligible for pro bono assistance, the counselors will refer her to pro bono legal clinics with which some of the counselors may be affiliated. No referrals will be made unless the patient specifically requests one. Counselors will only provide patients with the names of sources of legal assistance; patients will pursue these referrals on their own volition after they have left the emergency room.
The inquirers have asked the Committee whether the Program’s emergency room referrals would violate Rule 7.1(b)(2) and (3) of the District of Columbia Rules of Professional Conduct (“D.C. Rules” or “Rules”).1 We conclude that they would not.

Discussion
D.C. Rule 7.1 provides that

(b) A lawyer shall not seek by in-person contact, or through an intermediary, employment . . . by a non-lawyer who has not sought the lawyer’s advice regarding employment of a lawyer, if:
   . . .
   (2) the solicitation involves the use of undue influence;
   (3) the potential client is apparently in a physical or mental condition which would make it unlikely that the potential client could exercise reasonable, considered judgment as to the selection of a lawyer. . . .

     In order to determine whether the Program’s referrals would violate Rule 7.1(b)(2) and (3), we must divide the referrals into two categories—those to lawyers or legal clinics with which the Program’s counselors are not affiliated and those to legal clinics with which some of the counselors may be affiliated.
     Beginning with the first category, Rule 7.1(b)(2) and (3) would not apply to referrals to unaffiliated lawyers. Rule 7.1(b) governs a lawyer’s attempt to solicit, that is, to “seek . . . employment,” from a potential client either directly or through an intermediary. Thus, this Committee has previously applied Rule 7.1(b) to an arrangement in which a law firm planned to pay a per-client fee to an insurance company for referrals2 and to one in which a law firm planned to retain a marketing agent to solicit clients.3 In both cases, the law firms engaged intermediaries for the specific purpose of obtaining clients. In contrast, an attorney who receives a referral from a counselor who is not the attorney’s agent, who receives no consideration for the referral,4 and who is not acting under the attorney’s direction5 is not actively “seeking employment” within the meaning of Rule 7.1(b). Rather, the attorney is the passive beneficiary of a recommendation. Rule 7.1(b), therefore, would not apply to a referral to any attorney with which the Program’s counselors are not affiliated.6
     It is a closer question whether Rule 7.1(b) applies to referrals made by counselors to lawyers or legal clinics with which some of the Program’s counselors may be affiliated. The circumstances surrounding the referrals in this particular inquiry, however, lead us to conclude that the provisions of Rule 7.1(b) do not apply. Here, a counselor is providing a patient with a list of clinics and attorneys that may include an attorney or clinic with which some of the Program’s counselors are affiliated, but the counselor is not encouraging the patient to select an affiliated clinic or attorney over the other clinics and attorneys on the list. Thus, the Program is not “seeking employment” for an affiliated clinic or attorney, and Rule 1.7(b) would not apply.
     The conduct that is the subject of this inquiry is, therefore, quite different from the in-person solicitations that were at issue in In re Gregory, 574 A.2d 265 (D.C. 1990), where the D.C. Court of Appeals found that a lawyer’s aggressive, in-person solicitations of criminal defendants in a courthouse may have violated DR 2-103(A)(3) of the Code of Professional Responsibility of the District of Columbia, the nearly identically worded predecessor to Rule 7.1(b)(3).7 Unlike the respondent in In re Gregory, who was soliciting clients for only himself, the counselors in this inquiry are merely providing patients with a list of legal clinics and attorneys; they are not in any way suggesting to these patients that the latter select one attorney or clinic on the list over another or that they select any of the clinics or attorneys on the list.
     Moreover, in contrast to In re Gregory, which found that courthouse solicitation is likely to exploit a vulnerable group of potential clients, in violation of DR 2-103, the program at issue here would minimize the possibility that a patient would feel pressured in her choice of an attorney by providing the patient with a list of clinics and attorneys only if the patient requests one and by permitting the patients to pursue these referrals on their own volition after they have left the emergency room and have had more time for additional reflection.8
     The activities performed by the counselors here are significantly more like the activities approved by the Committee in D.C. Bar Op. 64 (1979). In that opinion, this Committee concluded that the Law Students in Court Program, which operated an information booth in the Landlord-Tenant Branch of the Superior Court that informed tenants about the free legal assistance that the program offered, did not violate DR 2-103 of the Code of Professional Responsibility.

Conclusion
The Committee concludes that the Program’s emergency room referrals would not violate Rule 7.1(b)(2) and (3). When the Program refers patients to attorneys and clinics with which the Program’s counselors are not affiliated, the referrals are mere recommendations to which Rule 7.1(b)(2) and (3) does not apply. When the Program referrals include attorneys or clinics with which some of its counselors may be affiliated, Rule 7.1(b)(2) and (3) also does not apply, since the patients are not being pressured to select the affiliated attorneys and clinics over the other attorneys and clinics in the referrals.

Inquiry No. 95-4-10
Adopted: November 21, 1995

The inquirers also requested an opinion on whether the Program would involve the unauthorized practice of law within the meaning of Rule 5.5 of the D.C. Rules and D.C. Court of Appeals Rule 49(b)(2) and (3). The definition of the practice of law is a question of law, see Rule 5.5 cmt. 1, and, under Committee Rule C-5, the Legal Ethics Committee does not provide opinions on questions of law. Therefore, the Committee does not address this aspect of the inquiry.
See D.C. Bar Op. 253 (1994).
See D.C. Bar Op. 225 (1992).
See, e.g., Pace v. State, 368 So. 2d 340, 342 (Fla. 1979) (solicitation rule does not apply to “the recommendation of an attorney by anyone to another where the one recommending has no relationship or privity with the attorney as the latter’s agent or as his employee or other similar relationship.”); Louisiana State Bar Ass’n v. St. Romain, 560 So. 2d 820, 823 (La. 1990) (solicitation rule does not apply because there was insufficient proof that a lawyer solicited “clients through a non-lawyer who is rewarded for the solicitation.”); In re Appert, 315 N.W.2d 204, 214 (Minn. 1981) (solicitation rule does not apply to lawyer’s attempt to contact prospective client who had been referred to him by a student researcher at a law school because “no exchange of value took place” between the student and the lawyer).
Cf. In re Berlant, 328 A.2d 471, 477-78 (Pa. 1974) (solicitation rule applies because “solicitation agreement existed or, at the very least, that appellant knew of the solicitation when he accepted the cases.”), cert. denied, 421 U.S. 964 (1975).
See D.C. Bar Op. 51 (1978) (“it is clearly permissible for [an insurance agent] to refer clients to the inquiring party as a result of his own independent deliberation.”).
DR 2-103 (A) provided that:
A lawyer shall not seek by in-person contact, or through an intermediary, his or her employment (or employment of a partner or associate) by a non-lawyer who has not sought his or her advice regarding employment of a lawyer, if:
. . .
(3) The potential client is apparently in a physical or mental condition which would make it unlikely that he or she could exercise reasonable, considered judgment as to the selection of a lawyer.
According to the court, the lawyer, “accosted persons known by him to have been charged with an incarcerable criminal offense, who were without counsel, and who had just been advised by a judge concerning the maximum possible penalties upon conviction and the important assistance an attorney could provide. The vulnerability of persons in that situation should have been, and indeed was, obvious to the Respondent.” 574 A.2d at 268 (emphasis in original).