LEO: Advertising/Referral Fees LE Op. 984
October 27, 1987
You advise that a lawyer approaches one or more auto body shops and/or
tow truck operators and offers to pay a nominal sum ($0.50 or $1.00) for
the rental usage of the customer list/mailing list of the particular auto
body or tow truck company. The lawyer then mails a brochure detailing the
fact that, among other things, he specializes in handling auto
accident/personal injury claims. You wish to know whether the payment of $
0.50-$1.00 per name for the rental of the mailing list for marketing
purposes of auto body/tow truck customers is violative of prohibitions on
payment of referral fees.
Disciplinary Rule 2-103(D) [ DR:2-103] states that "a lawyer shall not
compensate or give anything of value to a person or organization to
recommend or secure his employment by a client, or as a reward for having
made a recommendation resulting in his employment by a client, except that
he may pay for public communications permitted by DR:2-101 and the usual
and reasonable fees or dues charged by a lawyer referral service."
Ethical Consideration 2-7 [ EC:2-7] states that, "A lawyer should not
compensate another person for recommending him, for influencing a
prospective client to employ him, or to encourage future recommendations,
except that he may pay for advertisements and other public communications,
for participation in legal referral services, or for lawful prepaid legal
services plans or legal services insurance."
As long as the auto body shops and tow truck drivers do not recommend the
lawyer's services, attempt to influence clients to employ the lawyer or
encourage future recommendations of the lawyer, the provisions of DR:2-
103(D) and EC:2-7 would not be violated.
Therefore, the Committee believes that it is not unethical for a lawyer
to pay an auto body shop and/or tow truck operator a nominal fee for
rental usage of the customer/mailing list so that the lawyer may mail the
customers a brochure detailing the lawyer's services. The lawyer, however,
must abide by the provisions of Canon 2 dealing with solicitation when
writing to the customers.
You mention in your inquiry that the attorney is holding himself out as a
specialist. See DR:2-104(A), which states, "a lawyer shall not hold
himself out publicly as, or imply that he is, a recognized or certified
specialist except in accordance with either DR:2-101, DR:2-102, DR:2-
103 or DR:2-104(A)(1), (2) and DR:2-104(B)."
Committee Opinion October 27, 1987