Attorney may not pay for advertising of another attorney in exchange for referrals

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Attorney may not pay for advertising of another attorney in exchange for referrals


The Disciplinary Commission has determined that it
would be appropriate to give further consideration to
the conclusions reached in RO’s 92-23 and 93-23 which
address the issue of whether an attorney may pay the
advertising expenses of another attorney in exchange for
referrals from the attorney whose services are advertised.


An arrangement whereby advertising expenses are paid
by someone or some entity other than the lawyer whose
services are being advertised would, in the opinion of
the Disciplinary Commission, violate Rule 7.1 of the Rules
of Professional Conduct, in that advertising under such
circumstances would constitute “a false or misleading
communication about the lawyer or the lawyer’s services.”
Additionally, payment of advertising expenses in exchange
for referrals violates the prohibition in Rule 7.2(c)
against a lawyer giving “anything of value to a person
for recommending the lawyer’s services.”


Rule 7.1 of the Rules of Professional Conduct provides
as follows:

“Rule 7.1 Communications Concerning
A Lawyer’s Services

A lawyer shall not make or cause to be made a false
or misleading communication about the lawyer or
the lawyer’s services. A communication is false or
misleading if it:

(a) Contains a material misrepresentation of fact
or law, or omits a fact necessary to make the
statement considered as a whole not materially

(b) Is likely to create an unjustified expectation
about results the lawyer can achieve, or states
or implies that the lawyer can achieve results
by means that violate the Rules of Professional
Conduct or other law;

(c) Compares the quality of the lawyer’s services
with the quality of other lawyer’s services,
except as provided in Rule 7.4; or

(d) Communicates the certification of the lawyer by
a certifying organization, except as provided in
Rule 7.4.”

It would appear obvious that any potential client who
calls the telephone number listed in the above described
advertisement scheme would be misled as to which attorney
they would be dealing with and who would be representing
them in their particular legal matter. While the referral
concept is obviously an acceptable one in this state,
advertisement by means of this type of conduit whereby
one attorney or firm avoids direct participation in the
advertising, other than funding the same, misleads the
public as to what attorney or attorneys a potential client
will be dealing with and which attorney will ultimately
serve as the client’s legal representative.

Further, the lawyers involved in open referrals must
ensure the client is aware of the referral system, division
of fees, degree of participation of the attorneys involved,
etc., as mandated by Rule 1.5 of the Alabama Rules of
Professional Conduct.

The purpose of the rules is to protect the public. Any
advertising scheme which would circumvent full disclosure
of relevant information to the consuming public violates,
not only the rules themselves, but their spirit and purpose
as well. Strict adherence to applicable rules would not
allow such an advertising and referral arrangement. The
circuitous referral concept envisioned therein is not a
plan structured as to prevent misleading the public while
maintaining the integrity of the representation of the

Other rules of professional conduct would be impacted,
or potentially impacted, by this type of advertising and
referral arrangement. First, the fact that one attorney
would be paying the advertising expenses of a second
attorney in exchange for referrals means that the second
attorney would be receiving something of value in return
for a referral or recommendation of the first attorney’s
services. This is clearly violative of Rule 7.2(c), which
provides, in pertinent part, that “[a] lawyer shall not
give anything of value to a person for recommending the
lawyer’s services ….”

Furthermore,Rule 1.10 deals with vicarious disqualification
of lawyers associated in a “firm.” Whether a group of
lawyers constitutes a “firm” for purposes of this rule is
a factual question. The Comment to Rule 1.10 notes that
a group of lawyers could be considered a “firm” in one
context of the rule, but not in another. If lawyers are
associated in the practice of law in some way, the exact
relationship can be immaterial for the purposes of
disqualification under Rule 1.10. In light of the
provisions of Rule 1.10, and the construction which has
been placed thereon, there would appear to be a distinct
possibility that attorneys or firms who participate in such
an advertising arrangement would inherit one another’s
conflicts of interest and would thereby be vicariously
disqualified from any matter in which the other had a

Based upon the above, it is the opinion of the
Disciplinary Commission of the Alabama State Bar that it
is ethically impermissible for one attorney to pay the
expense of advertising the services of a second attorney
in exchange for the referral of cases by the second
attorney. To the extent that RO-92-23 or RO-93-23 may be
inconsistent with the conclusions stated herein, they are
to be considered as modified in conformity herewith.

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