ETHICS DOCKET NO. 1988-78

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1988-78

Advertising-Solicitation: participation in advertising lawyer referral program/group advertising

Your letter of inquiry does not clearly identify your role with respect to the R. W. Lynch, Company, Incorporated, however, you appear to be the attorneys for an organization who produces advertising programs and places the advertisements for broadcast on local television stations designed to encourage telephone calls from injured persons. From your description in your inquiry as well as from the video tapes of the thirty and sixty second television commercials, it is clear that viewers of the commercials are given a toll free ""800"" number to call which is identified as the ""Injury Helpline."" Apparently, the company contacts and obtains agreements from participating attorneys and law firms to purchase the exclusive right to receive telephone calls generated from the commercials from certain geographical areas, defined by postal zip codes.

The advertisements note that the ""[a]dvertising [is] paid for by sponsoring attorneys. Not a lawyer referral service."" Additionally, the advertising displays the names of Maryland, Virginia and Washington, D.C. participating attorneys. The text of the advertisement includes a mention that viewers will be referred to an attorney ""in your area,"" who is familiar with the personal injury field of law.

Let me note from the outset that it is not the practice of the Committee to endorse or approve specific forms of advertising presented to us for review. We can, however, comment upon the general concept presented by the ""Injury Helpline"" as described by your inquiry as well as the video taped copies of the advertisements. Maryland Rule of Professional Conduct 7.2 (c), states: 

""A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may pay the reasonable cost of advertising or written communication permitted by this rule and may pay the usual charges of a not-for-profit lawyer referral service or other legal service organization.""

As previously stated in Ethics Opinion 87-41, this Committee is of the opinion that for a lawyer referral service or other legal service organization to be within the exception of 7.2 (c), it must be a not-for-profit organization. Rule 7.2 (c), however, also excepts payment in the form of the reasonable costs of advertising. It is the Committee's opinion that the ""Injury Helpline"" concept is a form of group advertising rather than a traditional lawyer referral service and consequently, the renumeration paid by the participating lawyer is not something of ""value [paid] to a person for recommending the lawyer's services."" As a group advertising program, rather than a lawyer referral service, the helpline does not come within the limitation of a ""not-for-profit"" organization exception to Rule 7.2.

It is unclear, however, from either the advertisement, your description of the advertisement, or the advertising services agreement entered into between R. W. Lynch Co., Inc. and the participating attorney, whether the requirements of Rule 7.2 (d) and 7.2 (e) have been satisfied. Additionally, the Committee has not been provided with sufficient information to opine as to whether the standards set by Rule 7.1 have been fulfilled. The text of the advertisement is unclear about the method of which a caller is ""matched"" with an attorney, except for the vague description of ""in your area."" By displaying on the television screen the name of a number of attorneys who appear to be participating in the program, it may be misleading to a viewer if he or she believes that one of any number of attorneys may be selected to represent him or her, not realizing that only the lawyer in the viewer's zip code area will be ""matched"" with the caller. The concept of the group advertising program, however, is not per se violative of the Maryland Rules of Professional Conduct in the Committee's opinion.