Lawyer Advertising Opinion #A-0115

Legal Advertising Opinion A-0115: May a Lawyer Advertise For a Specific Type of Case That The Lawyer or the Lawyer’s Firm Does Not Intend to Handle?

Question:

May a lawyer advertise for a specific type of case that the lawyer or the lawyer’s firm does not presently handle nor intend to handle? If the advertisement generates a prospective client, the lawyer would screen a potential case to determine whether there may be a viable claim and, if so, refer the matter to other lawyers outside the firm who will provide the actual legal representation to the client. The outside lawyers will pay a referral fee back to the lawyer. At the initial intake, the lawyer will disclose to the potential client that the lawyer does not actually handle this type of case but it can refer the prospective client to a very competent lawyer with the necessary expertise in this area and this lawyer will pay the associated lawyer a referral fee. The relationship between the lawyer and the associated lawyer or his law firm, including the referral fee, will be explained in the representation letter. May the lawyer advertise for cases that the lawyer fully intends, from inception, to refer out and collect a referral fee?

Answer:

Lawyers may not advertise for specific types of cases that they do not presently handle nor intend to handle. The committee believes that engaging in this type of advertising violates Rule 7.1, and potentially Rule 7.3, which govern communications regarding lawyers’ services.

Rule 7.1 (a)(1) states:

A lawyer shall not, on behalf of the lawyer or any other lawyer affiliated with the lawyer or the firm, use or participate in the use of any form of public communication if such communication contains a false, fraudulent, misleading, or deceptive statement or claim. For example, a communication violates this Rule if it:

(1) contains false or misleading information…

Through the advertisement, the lawyer is holding himself or herself out as practicing law in a specific area in which he or she does not practice. Advertising for cases that the lawyer has no intention of handling is clearly misleading to the public at large. Prospective clients would reasonably believe that the lawyer provides legal services as claimed in the advertisement and has experience in this particular practice area which in fact is untrue. Comment [4] to Rule 7.1 states that, “[t]he non-lawyer is best served if communications about legal problems and lawyers contain no misleading information or emotional appeals, and emphasize the necessity of an individualized evaluation of the situation before conclusions as to legal needs and probable expenses can be made.??? Comment [2] clarifies further that “[a] truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no factual foundation.??? This comment substantiates the Committee’s conclusion that an advertisement of this nature is in fact misleading. [1]

Further, Comment [1] to Rule 7.2 reminds lawyers who advertise that “[t]he proper motivation for commercial publicity by lawyers lies in the need to inform the public of the availability of competent, independent legal counsel. The public benefit derived from advertising depends upon the usefulness of the information provided to the community or to the segment of the community to which it is directed.??? These comments emphasize that lawyer advertising is intended to provide useful, factual information to guide non-lawyers in making informed decisions and choices regarding legal services. The advertisement in question leads to misinformation and distrust in the profession as it misdirects consumers in their choice of a lawyer.

Rule 1.5(e)[2] allows one law firm to divide a fee with another law firm if the fee is reasonable and the client consents. The Legal Ethics Committee has opined in LEO 1739 that it is proper for a lawyer to refer a client to another lawyer if he or she believes that they lack the required competence or if there is a conflict. The committee then properly cautions that a law firm’s marketing efforts that include promises to compensate or reward any lawyer or law firm for a referral of clients could be viewed as an attempt[3] to engage in improper solicitation under Rule 7.3(d) or “running and capping??? in violation of Chapter 39, Article 7 of Title 54.1 of the Code of Virginia. If the second law firm has an agreement with the first law firm in that they are receiving all of law firm A’s referrals they may be perceived as being involved in this type of misconduct.

Rule 7.3(d) states:

A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure employment by a client, or as a reward for having made a recommendation resulting in employment by a client …

Together these rules prohibit a lawyer from using/paying another, including another lawyer or law firm, to solicit clients for them. By sharing a referral fee with the first lawyer, who does not even practice in the area for which they are soliciting clients, the associated lawyer may have potentially violated Rule 7.3 as well.

Committee Opinion

April 4, 2006



[1] See In the Matter of Robert Edward Howard, VSB Docket Nos. 99-042-2586, 00-042-0234, and 00-042-1889. (Respondent advertised to Vietnamese community that his firm “specialized in??? immigration when in fact no lawyer in the firm practiced immigration law, but the respondent had an attorney available to whom such matter might be referred.)

[2] A division of a fee between lawyers who are not in the same firm may be made only if: 1. the client is advised of and consents to the participation of all the lawyers involved; 2. the terms of the division of the fee are disclosed to the client and the client consents thereto; 3. the total fee is reasonable; and 4. the division of fees and the client's consent is obtained in advance of the rendering of legal services, preferably in writing.

[3] Under the Virginia Rules of Professional Conduct, it is professional misconduct to attempt to violate the Rules. Rule 8.4(a).

Updated: Apr 20, 2006