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.
- Rule 7.1 (Communications Concerning a Lawyer’s Services)
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.
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:
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.
. . .
(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. . . .
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
and to one in which a law firm planned to retain a marketing agent to
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.
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
- 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.
- D.C. Bar Op. 253 (1994).
- 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).
- . 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).
- 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.”).
- 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.
- 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).