“So what I think your saying (according to what is determined ‘ethical’) is that I really cannot MENTION that there is a monetary benefit ($2500) or value of substance (weekend for 2 to Hawaii) for the attorney that refers their client to me? Is that right?”
It would be unethical to encourage someone to violate a law that applies to them.
So, a nonlawyer offering a referral fee to a lawyer would be similar, from an ethical perspective, to offering a truck driver a $500.00 bonus to get a load from Florida to Pennsylvania in 16 hours. He would have to drive longer and faster than he is allowed to by law, so you would be paying him to violate laws that apply to him.
While the referral fee may seem like a good way to help out the lawyer’s client, it places the lawyer in a position of giving advice that benefits himself. A similar situation would exist in the medical profession, if physicians prescribed drugs knowing they will get a kickback from the drug company for every prescription they write. The professional would find himself in a position of considering his self-interest in addition to, or instead of, what is in his patient’s best interest.
In what way, if any, would it be “legal” to ADVERTISE “giving money” to an attorney for a referral (referral fee, reward, gift, pay, money, cash, check, gold, etc…) given this “Code of Professional Responsibility”
DR 12-1205 Compensation from Nonlawyers
A lawyer shall not refer a client to a nonlawyer with the understanding that the lawyer will receive a fee, commission, or anything of value in exchange for the referral, but a lawyer may accept gifts in the ordinary course of social or business hospitality.
Again, how can it be ADVERTISED? (I know it’s “kind” of clear in the Code but I’m looking to find a way to do it - rightly.)
First, the Code of Professional Responsibility applies to lawyers. So, if you are not a lawyer, you are not bound by it.
However, any attorney who accepted money from a nonlawyer who publicly advertised his intention to pay referral fees to attorneys would be unethical and foolish. In a disciplinary proceeding against the attorney, the advertisement would be pretty convincing evidence that the attorney engaged in misconduct by knowingly accepting a referral fee from a nonlawyer.
The reason for the disciplinary rule has been explained as follows:
"a lawyer should not refer clients to nonlawyer professionals under an agreement for or an expectation of receiving compensation for the referral. The lawyer should make the referrals based on what is best for the client, not what returns the most benefit to the lawyer. At the same time, the LEC recognized that it is normal business practice for professionals to encourage referrals from lawyers and to express gratitude therefore in the form of hospitality, gifts, or other ‘perks.’ Typical gifts include wine, fruit baskets, tickets to sports events or other entertainment, meals, or invitations to golf. Neither the LEC nor the BOG believes that lawyers should be precluded from such ordinary exchanges of professional hospitality.
The new language developed by the LEC and recommended by the BOG addresses those competing concerns. It prohibits referrals made pursuant to an understanding that the lawyer will receive a fee, commission, or anything of value in exchange for the referral. However, it allows the receipt of ordinary social or business gifts that are not intended or designated as ‘payment for’ a specific referral."
So when “they” say, “…The lawyer should make the referrals based on what is best for the client, not what returns the most benefit to the lawyer…”, then “they” ALWAYS interpret that SOME expected referral given to an attorney is ALWAYS greater than the benefits their client receives from services. We can agree that IS one way to protect the client but it is lousy bad business - throwing the baby out with the bath water.
So what I think your saying (according to what is determined ‘ethical’) is that I really cannot MENTION that there is a monetary benefit ($2500) or value of substance (weekend for 2 to Hawaii) for the attorney that refers their client to me? Is that right?