Have you ever thought about starting your own for-profit lawyer referral service? Using staff to screen incoming calls and match potential clients to lawyers?
OSB Formal Ethics Op No 2005-168, revised June 2018, contemplates exactly this scenario. While permitted, there are restrictions. Read on.
Can I own a for-profit lawyer referral service?
Yes! However: lawyers are not permitted to use other businesses (such as a lawyer referral service) for in-person solicitation of legal work. Nor may lawyers misrepresent the nature of services provided. OSB Formal Ethics Op No 2005-10; OSB Formal Ethics Op No 2005-106 (rev 2016); OSB Formal Ethics Op No 2005-108 (rev 2015).
Can I manage a for-profit lawyer referral service?
Yes! General management and administration of a lawyer referral service is ethical. This includes duties such as hiring staff or supervising operations.
May I operate my for-profit lawyer referral service at the same premises as my law practice?
Yes! Since lawyers are allowed to office share with non-lawyers, there is no ethical barrier to operating a referral service at the same physical location as your law practice.
What ethical issues might arise in operating a for-profit lawyer referral service?
Lawyer-owners should avoid participating in the actual screening of incoming inquiries (potential clients). This eliminates two risks.
- Receiving confidential information which could create a conflict of interest
- Creating a lawyer-client relationship
Lawyer-owned and operated referral services must be separate independent incorporated entities – not merely DBAs (assumed business names) registered to the lawyer. See In re Fellows, 9 DB Rptr 197, 199-200 (1995).
Do not give legal advice through your lawyer referral service! As OSB Formal Ethics Op No 2005-168 explains, “a referral service is not licensed to practice law and a lawyer may not assist a nonlawyer in the unlawful practice of law.”
In my opinion
If you decide to operate a lawyer referral service, consider taking these extra steps to minimize your liability.
- Create your referral service with the same formality as you would an independent business for one of your clients. This isn’t the time for shortcuts. Have a business plan, mission statement, marketing plan, budget, financial projections, etc. If this is a co-venture among you and your lawyer friends, have a written “partnership” agreement or equivalent!
- Keep independent records and books.
- Set up the service in a separate physical location. Is it ethically necessary? No, but it’s smart. Keeping the businesses physically separate minimizes confusion and increases the appearance of neutrality. (The service isn’t there to feed clients to you – it exists to refer clients to others.)
- Consider hiring separate staff for the referral service. This will offer further protection against potential conflict of interest arguments. If neither you nor your legal staff are involved in screening, you can’t possibly receive confidential information. Besides, your staff may not have the time to handle the additional workload. Referral services are busy. Do you want your paralegal or legal secretary to answer referral calls or get your work done? They may not be able to do both.
- Train referral staff on unlawful practice of law issues and other concerns related to the service. For example, what should they do if a client comes to your referral business in person and wants to talk to a lawyer now!
- Use disclaimers in your advertising, on your website, in online forms, or as part of a recorded greeting heard by all callers. See this language posted on the Oregon State Bar Lawyer Referral Service (OSB LRS) web page.
- While the assertion of negligent referral is a rare thing, the right client in the right circumstance may make a claim. Be prepared and inquire into proper business insurance coverage. Don’t assume your professional liability extends to your independently owned and operated lawyer referral service.
All Rights Reserved 2018 Beverly Michaelis