Unless corporation is not-for-profit and bar association approved, it is improper to cooperate with corporation who proposes to provide group advertising and refer potential clients to participating attorneys.

FACTS

The inquiring attorney is a California lawyer with a corporate client that provides advertising services for attorneys specializing in personal injury cases in California. The corporation is considering doing business in Arizona to provide the same type of advertising services for Arizona attorneys.

The corporation provides advertising in the TV and radio markets for personal injury attorneys by selling them exclusive rights of notification within a given zip code for all potential clients who call in response to the advertisements. When a potential client views an ad, he is given an '800" number to call and the operator then takes the name, phone number, and zip code of the client. That information is then passed on to the corporation which in turn passes that information on to the attorney who purchased the exclusive rights to all callers within that same zip code area. At that juncture, it is up to the attorney and potential client to determine whether the attorney's services will be utilized. The corporation does not screen calls but refers them directly to the contracted attorneys. The inquiring attorney states that an Arizona lawyer would have his/her name attached to any advertisement.

QUESTIONS

May Arizona attorneys cooperate with a corporation which provides TV and radio advertising and refers potential clients responding to the advertising to attorneys who have contracted for the right to all referrals from potential clients within a particular zip code area?

RULES OF PROFESSIONAL CONDUCT INVOLVED

ER 7.1, ER 7.2, ER 7.5

OPINION

Pursuant to ER 7.2.an Arizona lawyer “may advertise services through public media such as . . . radio or television” subject to the requirements of ER 7.1 which requires, in part, that the communication not be “false or misleading.”

An Arizona lawyer “may pay the reasonable costs of advertising," ER 7.2. Any such advertisement “shall include the name of at least one lawyer responsible for its content,” ER 7.2 (d).

Provided that the content of the advertisement was in accordance with the requirements of the Rules of Professional Conduct, there would be no ethical problem with an Arizona lawyer contracting with an advertising agency to prepare radio or television advertisements. In this inquiry, however, the facts are significantly different. The advertisement is not to be presented on behalf of and controlled by one attorney, but rather is to be a group advertisement, the content of which is not controlled by the attorneys participating or, if so controlled, is controlled by a group of attorneys. As such, ER 7.5(a) may come into play. This rule prohibits a lawyer from using a “firm name, letterhead, or other professional designation that violates ER 7.1. A trade name may not be used by a lawyer in private practice.” The reference to ER 7.1, of course, requires that the name not be "false or misleading” as defined therein. This includes the requirement that it not omit “a fact necessary to make the statement considered as a whole, not materially misleading.” ER 7.1(a). The obvious problem with a group advertisement of this sort is that it fails to indicate the individual lawyers who are sponsoring the advertisement or, if it does indicate their names and affiliations, it may imply some sort of relationship between them that is probably impermissible under ER 7.5. This would, of course, depend on the specific content of the advertisement, which is not before us.

A more fundamental problem with the proposed arrangement lies in the relationship between the lawyers and the corporation. ER 7.2(c) provides that “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 costs 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.” In the present proposal, the lawyer is paying not only for the advertising but also for the referral of prospects generated by the advertising. Cooperation with an organization providing such a service would be permissible if it met the requirements of ER 7.2(g). Among the categories of organizations listed, the closest would appear to be that in ER 7.2(g)(3) “A lawyer referral service operated, sponsored, or approved by a bar association.” The particular lawyer referral service in this inquiry does not appear to be “operated, sponsored, or approved by a bar association." If the corporation is not for profit and obtained such approval, for example from the Maricopa County Bar Association or The State Bar of Arizona, and otherwise were operated in accordance with the requirements of the Rules of Professional Conduct, Arizona lawyers could cooperate with it.

In our opinion No. 82-12, dated May 28, 1982 this committee rendered an opinion based on the former Code of Professional Responsibility which reached a similar conclusion. We see no changes in the new Rules of Professional Conduct which would lead to a different result.

Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rule changes, a different conclusion may be appropriate.

© State Bar of Arizona 1985