NOTE: This opinion has been superseded by MRPC 7.1 and 7.5.

CI-854

January 7, 1983

SYLLABUS

It is ethically improper for a law firm to maintain and operate a private legal referral service which is inconsistent with the provisions of DR 2-103(D). It is likewise ethically improper for a group of attorneys or law firms to maintain such a referral service in the guise of a joint advertising scheme.

It is misleading for a group of attorneys or law firms to maintain an advertising program under a common trade name when the law firms are not in fact one entity.

References: MCPR DR 2-102, DR 2-103(D); CI-343, CI-357, CI-366, CI-405, CI-454, CI-528, CI-646, CI-723, CI-788; Supreme Court Admin Order 1978-4.

TEXT

Several attorneys who maintain separate and independent law practices have formed an organization with the purpose of sharing advertising expenses. The members of the organization are independent practicing attorneys who limit their practice to a given area of law. It is proposed that the organization not list all of the attorneys who are members of such organization in the ads, but only one number to call for such information. It is proposed that the phone number be an answering service that upon request will give the name of each attorney who is a member and, if requested, make referrals on a rotating basis.

1. Must the name of an attorney be listed in each advertisement, or only in the fact that the members of such organization are independent practitioners?
2. If a name of an attorney is required, may the organization list one name or must all the lawyers be listed?
3. Is the referral by an answering service as described sufficient and ethical under the rules?

We presume that the organization would operate under a trade name. CI-405 states:

"The use of a trade name by a lawyer in private practice could be misleading and to avoid the inference that a trade name is misleading, the names of the lawyers or law firm using the particular name should be clearly associated with its use.

"The use of a trade name in an otherwise proper advertisement is not unethical so long as the name or names of the lawyers or law firm using the particular name appear in conjunction with the advertisement."

See also, CI-788, CI-646, CI-454, CI-357, CI-343.

Based upon the foregoing if the advertising program proposed were ethically proper, each lawyer's name would have to be listed. However, such an advertising program is not ethically proper for the reasons stated below.

In CI-723, several law firms indicated a desire to consolidate advertising resources through a common advertisement scheme. It was intended that an answering service be used and that clients be assigned to each lawyer on an alternating basis. It was contemplated that a referral fee would be paid by the recommended lawyer to expand advertising efforts and to pay the costs of the answering service. The legal firms per se were not to be advertised, but rather the referral service itself would be mentioned and the availability of legal information and free initial consultation would be noted to the prospective client.

It is the Committee's opinion that the organizational scheme as outlined would, in essence, establish a lawyer referral service. Since the proposed referral service is not operated or sponsored by one of the agencies listed in the MCPR, it is not permitted unless it satisfies the requirements of DR 2-103(D)(4).

The common advertising scheme that is proposed is substantially the same as that outlined in CI-723. It is obvious that the costs of the advertising and the operation of the answering service would have to be borne by the various lawyers involved. Therefore, it is the Committee's conclusion that this advertising scheme would establish a lawyer referral service, which is inconsistent with the noted provisions of DR 2-103 and therefore ethically improper.

Furthermore, if instead of making referrals on a rotating basis, the proposed answering service gave the name of each lawyer who is a member, the proposed advertising scheme would fail under another rule. This ethical problem relating to a group of lawyers who conduct a common advertising program was set forth in CI-528. That informal opinion dealt with a group of lawyers who proposed a variety of advertising programs. CI-528 states:

"This general principle espoused in CI-366 is primarily based upon MCPR DR 2-102. While it is true that DR 2-102 has been suspended to the extent it is in conflict with [Michigan Supreme Court] Administrative Order 1978-4, the language relied on in DR 2-102 to support CI-366 is not in conflict in this instance. It would be misleading for attorneys to indicate either expressly or impliedly a relationship which did not in fact exist. Misleading communications are expressly prohibited by Administrative Order 1978-4. In applying this standard, it would be very difficult to approve of advertising which included attorneys with whom inquirer did not have a formal professional relationship such as a partnership, professional corporation or the like. Therefore, an underlying premise of the following opinion is that such a professional relationship does in fact exist."

CI-366 held that lawyers who are neither partners, associates not members of a PC but who share office space and facilities should have their telephone answered in such a manner as to avoid a misrepresentation of their professional relationship. See also CI-449 and CI-366. In CI-499 it was held improper for lawyers, in an expense-sharing office arrangement, to use the firm designation "X and Y and Z" because of the substantial likelihood that the general public will receive the impression that lawyers X and Y and Z are sharing in the professional responsibility for the outcome of client matters when, in fact they are not doing so.

Likewise, the common advertising scheme which is proposed would necessarily involve the use of a trade name which could give the general public the impression that the lawyers operating under that trade name are sharing in the professional responsibility for the outcome of client matters when, in fact, they are not doing so. Thus such a common advertising scheme violates DR 2-102.