RI-147

October 23, 1992

SYLLABUS

A lawyer may allow another person or organization to recommend the lawyer's services, provided that (a) the person or organization has had a prior professional relationship with the lawyer to enable the person or organization to be knowledgeable about the lawyer's services, (b) the lawyer reviews the advertisement prior to publication for compliance with ethics rules, and (c) nothing of value beyond the reasonable cost of the advertising is given to the person or organization by the lawyer.

A lawyer may offer legal services at a discounted rate. A lawyer may not allow a Chamber of Commerce to advertise, as an incentive for membership in the Chamber, that the lawyer offers discounts to the Chamber's members.

References: MRPC 1.5, 5.4(c), 7.1, 7.2(c); RI-24, RI-31; CI-704, CI-837.

TEXT

A lawyer is a dues paying member of a Chamber of Commerce and plans to offer legal services to Chamber members at a discount. The Chamber of Commerce would publicize the lawyer's mailings to its members. The lawyer would not share any fees generated by the advertisements with the Chamber.

While the lawyer could advertise directly to Chamber members, the Chamber will voluntarily recommend the lawyer through the Chamber's own publication and mailings. Finally, although not part of the lawyer's arrangement with the Chamber, the Chamber may publicize the lawyer's discounted services to induce prospective members to join the Chamber.

Advertising by lawyers is permitted under MRPC 7.2, which states:

"(c) A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may:

"(i) pay the reasonable cost of advertising or communication permitted by this rule;

"(ii) participate in, and pay the usual charges of, a not-for-profit lawyer referral service or other legal service organization that satisfies the requirements of Rule 6.3(b); and

"(iii) pay for a law practice in accordance with Rule 1.17."

Presumably the lawyer would pay a reasonable fee for the advertising or alternately the Chamber would cover the cost of the advertisements. In either of those cases the plan would be proper so long as the advertisements were reviewed by the lawyer prior to publication as set forth in RI-24 and RI-31 where it was reasoned that review by the lawyer was necessary to prevent violation of MRPC 7.1 which forbids false, fraudulent, misleading or deceptive public communications regarding a lawyer or the lawyer's firm, and so long as the lawyer does not allow the Chamber of Commerce as a recommender of the lawyer's services to influence the law firm's professional judgment in violation of MRPC 5.4(c).

It is not clear from the facts whether the Chamber of Commerce has ever personally used the legal services of the lawyer. If the Chamber of Commerce has not personally used the law firm's services, the Chamber is not in a position to know whether the lawyer merits recommendation to its members and it would be misleading for the lawyer to permit the Chamber to recommend the lawyer's services. MRPC 7.1. The lawyer may only allow the recommendation of the law firm by persons who are familiar with the law firm's work.

With respect to the discount aspect of the proposed plan, as long as the fees to be charged do not violate the ethical considerations concerning those charges (i.e., MRPC 1.5), the fact of a discount in the price which might otherwise be charged is merely a business determination of the lawyer and not an ethical problem. CI-704. It is ethical to advertise by direct mail and likewise a lawyer may offer a lower hourly rate to members of certain groups such as retired persons or magazine subscribers. CI-837.

Further, the law firm is prohibited from "giving anything of value" for the recommendation of the firm's services. If the Chamber uses the law firm's availability or the law firm's willingness to provide discounts to Chamber members as an incentive to attract members, the law firm, by permitting that use, has given the Chamber "something of value" in exchange for the recommendation of the law firm. MRPC 7.2(c).

Therefore the proposed arrangement is not proper.