Lawyer Referral Articles
From the Chair...
The Chair of the Standing Committee on Lawyer Referral and Information Service discusses current issues and events
From the Chair.
by Denis Murphy
Chair, Standing Committee on Lawyer Referral and Information Service
My term on the ABA Standing Committee for Lawyer Referral and Information Service comes to an end August 1998, and, as a result, this will be my last chair's column.
I will, however, remain connected to the committee as a PAR Consultant. After my tenure as chair, the committee's work will move forward with new leadership, new committee appointments, the same goals and the same brilliant work by our ABA staff.
When I was appointed to the committee, Cindy Raisch was its chair and Mike Franck was a member. Both have since died of cancer, and I am lucky to have known them. Their leadership skills were superb and their commitment to public service was inspirational. Their outgoing personalities made me feel immediately welcome when I was the new kid on the committee six years ago. Over the years the committee has been my ABA family. Cindy Raisch and then Lish Whitson, chairs before me, set the tone.
We knew each others' practices, family stories, the health of each others' parents, each others' hopes and dreams, and we met each others' children or at least knew about them. Most importantly, from meeting to meeting, here was a group of people brought together almost randomly (or so it seemed) who really cared about each other. These were people for whom friendships mattered; people who asked about you and really wanted to know the answer.
The committee appointment is not, however, as random as it first would appear. Each year the ABA President-elect asks the chair and staff for recommendations. Terms of appointment are for no longer than three years. A committee chair may serve up to three years at the pleasure of the ABA President. We have a nine-member committee plus the chair, with a third of the committee moving off each year.
Committee members must be members of the ABA, of course. That means that the appointee must be a lawyer. We have, over the years, sought suggestions for appointments from committee members and LRIS directors, and I suspect that, to the extent that our suggestions have been honored, they have made all the difference. The fact is that the committee make-up is, by and large, a reflection of its constituency. We, in turn, can count on the LRIS directors to know lawyers in the communities that they serve. In this process, we have the LRIS directors to thank for the recommendations that they have made.
Of course Sheree Swetin, Staff Director of the ABA Standing Committee on Lawyer Referral and Information Service, plays a role in this process. She reminds us to balance our recommendations for appointment between program directors and local committee members, and to maintain equal geographic representation.
And while I am passing out accolades, let me say that Sheree also has done a wonderful job in recruiting and nurturing other staff. Jane Nosbisch is a gem. My fear is that her talents will go rewarded, and she will move on to other endeavors within the ABA. Thank you to all committee staff past and present.
Finally, there are the PAR Consultants. Many are former committee members. All are committed to lawyer referral. They contribute the ideas and establish the standard of professionalism that make the committee's work so rewarding.
A lot has happened in the six years that I have been on the committee. In 1993, on our motion, the ABA House of Delegates adopted the model rules for the operation of an LRIS. Soon thereafter, the committee adopted the logo and slogan program and began the process of reviewing LRIS applications from around the country for use of the logo and slogan, which we often refer to as the "slogo" program. Over thirty services are approved to use the logo, certifying that the service meets ABA standards and can represent itself as "The Right Call For The Right Lawyer." We have trademarked the slogan.
We began a national marketing program on a shoestring budget with some remarkable national media successes. Our Media Guide has been an instant success. The committee has aggressively spread the gospel of the "business of public service," and increasingly, local services have adopted a percentage of the fee earned as part of their fee structure, which has increased many programs' economic viability. Our workshops have attracted the top leaders of the bar as keynote speakers. We established a List Serve for LRIS. The List Serve too has enjoyed immediate success. The ABA website dealing with LRIS is one of the most popular sites at the ABA.
During the last six years we have completed over 125 PAR visits. Through the leadership of the PAR subcommittee chairs, Sheldon Warren and Ron Abernethy, we have conducted annual training sessions for our PAR consultants, and we have released new brochures on how to start or operate an LRIS. We are moving to change a provision of the bankruptcy code so that LRIS panel members can pay a percentage of the fee awarded without fear that they are violating the Bankruptcy Act. We can boast that five states now enforce the model rules, or at least some of their provisions, but even more importantly, many state and local lawyer referral programs have adopted these model rules voluntarily.
Over the last six years, I have seen the lawyer referral service community grow and have observed that, like family, members of the LRIS community have been drawn together even more closely.
I am happy to have been a part of that.
Doing it on a Shoestring with the Help of the ABA's Marketing Plan
by Shelley Carthen Watson
Every bar executive knows the value of a lawyer referral and information service. The challenge is to get word of that value to the public without breaking your budget. Fortunately, the ABA Standing Committee on Lawyer Referral and Information Service has made the task easier.
With the help of the ABA Media Relations and Public Affairs Division and the National Association of Bar Executives Public Relations Section, the Committee has created an LRIS public relations and marketing guide that provides you with all the ideas and materials that you need. All that you have to do is follow through and customize the materials to fit your program. From fill-in-the-blank press releases, public service announcements, sample ads, logos, and camera-ready art, the Guide contains everything that you need to get your LRIS publicized in an effective, yet cost-efficient manner.
Finding the Right Message: What is Lawyer Referral Anyway?
The thought of creating an identity and message for a promotional campaign conjures up visions of consultants, focus groups, pitch meetings, time and money. As an ABA-approved LRIS, however, our work was done already. The ABA has a national slogan and logo for lawyer referral programs: "Lawyer Referral--The Right Call for the Right Lawyer." The slogan and logo are camera-ready and all we had to do was customize them.
Media Relations: No Consultants Needed
Not every bar association has the luxury of having an in-house media or public relations consultant to market their LRIS. There are ways, however, in which you can utilize your staff to let the media, and hopefully the public, know about lawyer referral.
- Press Releases. The ABA has created prototype press releases that target general legal services, buying a home, and small businesses. Simply add your association name and mail.
- Public Service Announcements (PSAs). Can't afford to produce your own PSAs? Just customize the ABA's PSAs and distribute the scripts to your local radio stations. They can read them over the air or provide their own voice-over talent. All it costs is a few phone calls and postage.
- Lead Sheets. No one is immune from the frustration of trying to interest local media in lawyer referral. The use of lead sheets (ideas that can "lead" into another longer story) can interest editors in reading more about lawyer referral. The ABA has created lead sheets on topics such as "Debt Soars--Who Ya Gonna Call" and "Usually 'Civil' to Our Neighbors--Beware of Long Sidewalks." All can be customized to your lawyer referral service and give editors short items that can easily be written into newspapers and magazines.
- When it comes to advertising, our bar association's referral service, like most LRISs, use the Yellow Pages or newspaper ads that can put a big dent in any budget. The cost of ad placement is bad enough, but the ad itself also needs to be created. Never fear, the ABA has camera-ready art on disk for ads. Just customize the art to include you association name, logo and phone number, and you're on your way.
- The time and cost of designing and printing brochures is nothing to sneeze at. You can reduce it by half, however, because an LRIS brochure, already on disk, is available. It contains all of the information that your public needs. You can tweak it to fit your LRIS or use as is. All that's missing is your name on the back.
The Sky's the Limit
In addition to all above, the guide contains a wealth of resources, all of which are already tried and tested for you. If you decide to go all out and launch a full marketing campaign, the guide has sample campaign plans for every budget. Use all or some of them according to your needs. Information on how to work with community groups to identify the best way to reach the public about lawyer referral also is included, from sample letters to ideas about joint projects. For those bar associations with limited resources (or champagne tastes and beer budgets), the LRIS Public Relations and Marketing Guide is a great way to get your campaign off the ground.
For copies of the Guide, contact Sheree Swetin, Staff Director of the ABA Standing Committee on Lawyer Referral and Information Service by phone at 312/988-5755 or by e-mail at email@example.com
Shelley Carthen Watson is Executive Director of the Hennipen County Bar Association.
Ask Dr. EthicsScreening Without Practicing Law
by Richard A. Zitrin
Dear Dr. Ethics:
For years, our panel members have wanted us to screen out more callers who really don't have cases. Recently, our bar board told us that they also want us to do more screening, so that people without legal cases who still have legal problems get sent to the right public service agency instead of getting a dead-end call with a lawyer. The board even gave us some more money to hire another part-time interviewer. But how can we screen callers without practicing law?
The other day a caller said she had been in a car accident in 1991. That's seven years ago, and our statute of limitations is only two years. But how can we tell her she has no case? We're not attorneys. Still, when we tried to refer her, five lawyers in a row didn't even want to talk to her. How can we screen without practicing law?
--Screamin' About Screenin'
Dear Loud One:
Scream no more. Your problem is perhaps the most common ethical issue facing LRISs across the country. More services are doing more and more screening, which both provides a public service to callers and gives more desirable referrals to panel attorneys. But screening often means walking a tightrope between practicing law and giving practical advice for those calling in for help.
Each state has different regulations about the unauthorized practice of law. If your interviewers are careful and carefully trained, however, they can avoid the pitfalls in most states.
First comes good training. Local panel attorneys are great sources to explain the basics of whether a caller might possibly have a case. Remember, the test should be whether there's the reasonable possibility of a case. If you can, get your panel lawyers to write up a brief "crib sheet" for each major subject matter area. You might also consider sending interviewers to a state or ABA workshop that includes a session on this issue. We've done several at ABA LRIS Committee's annual workshops over the years.
Second, if interviewers say anything that's even arguably a recommendation or advice, they must make it crystal clear that they are not lawyers. Third, the interviewers also must make it clear that they are not actually giving the advice. Rather they must stress that the information comes from what they have been told (or have seen in writing) from their panel attorneys. Finally, if the caller is insistent on seeing a lawyer rather than going to Small Claims Court, the Tenants' Rights Clinic, or another agency, do your best to get that caller an appointment with an attorney. If possible, explain to the lawyer where he or she might refer the caller next. It is possible that the caller needs to hear it from someone with a J.D. degree on the wall.
What about the woman with the seven-year-old auto accident? Never tell her that she has no case or that the statute of limitations has passed. For one thing, it would cross the line into practicing law. For another, as in most walks of life, there's no such animal as a sure thing. The statute of limitations, for example, can be "tolled" (i.e., the clock stops ticking) for various reasons in many states.
But if you have training or a "crib sheet" from your panel lawyers, and if you first develop a track record of trying to refer these callers, only to find no lawyers will take them, then Dr. Ethics is reasonably comfortable if your interviewer says, "Our experience has been that we cannot refer this type of case to our panel lawyers when it is seven years old. Our panel attorneys tell us that the statute of limitations has passed, because more than two years has gone by. This doesn't mean for sure you don't have a case, but it does mean there's a good chance that I may not be able to find a lawyer willing to talk with you about it."
This speech is informational, and in Dr. Ethics' opinion, does it not qualify as practicing law in any way. When it comes to screening protocols that provide legal information, don't set them up without further conversations with your panel attorneys, your LRIS committee, and in many cases, your board. Dr. Ethics believes that the day-in, day-out work of an LRIS interviewer who screens cases requires giving callers practical advice that helps them achieve the goal of resolving their legal-related issue.
Dr. Ethics also believes that this balanced, practical approach can be done without falling off the "practicing law" tightrope. But unfortunately, Dr. Ethics can't provide safety nets. After all, there are 48 states out there in which he's not licensed to practice. Not to mention the District of Columbia!
In conclusion, screening cases is good. It provides a service to the consumer and better cases for panel lawyers. It gets callers who have legal issues that don't require a lawyer to people who can help, without burdening busy panel attorneys with referrals that don't result in cases. The more the interviewer does beyond simply setting up an appointment between caller and lawyer, however, the more careful the discussion has to be, and the more training, experience, and thought should go into the content of what the interviewer says and--just as important--how the interviewer says it.
Please send your questions to Dr. Ethics, ABA Standing Committee on Lawyer Referral and Information Service, 321 N. Clark Street, Chicago, IL 60610-4714.
The views expressed in this article are those of the author and should not be deemed the policies or position of the American Bar Association.
Is Your LRIS Liable?
by Sheree Swetin
Are lawyer referral programs liable for the referrals they make? Can a referral client successfully sue an LRIS for negligent referral? Legal malpractice? What is the bar's liability to the client if the attorney's insurance is canceled? Lawyer referral programs must consider several types of professional liability that could result from their daily activities.
Many professional groups refer clients to their members. Negligent referral liability can arise when the lawyer referral service promises or implies that certain standards or criteria exist when in fact, they do not. A lawyer referral program also can be negligent by inaccurately communicating panel attorney qualifications, or by not verifying that attorneys meet the criteria promised to the client. Liability also can exist when the LRIS indicates to the public that the program offers a higher standard of referral, when it in fact does little or nothing to ensure quality referrals.
On rare occasions, lawyer referral programs have been sued for legal malpractice. In such instances, the client often names the LRIS, with the panel member, as an additional defendant, especially if the plaintiff needs a deep pocket because the panel member has insufficient insurance limits.
This is a difficult claim to pursue, because most lawyer referral programs do not establish a lawyer/client relationship or provide legal advice, which are elements of a legal malpractice claim. If your program provides legal advice through lawyer-interviewers or through call-in hotlines, you should look into adding, to your bar's errors and omissions policy, legal malpractice protection for volunteers.
Finally, the lawyer referral program can be found to be vicariously liable for legal malpractice claims if its panel members fail to keep their insurance policies in force. Most lawyer referral programs promote the fact that all of their panel members carry legal malpractice insurance.
Is the lawyer referral service liable for malpractice damages if the panel member cancels his or her insurance or fails to make premium payments? At least one program in California has paid money to settle such a claim. Even if the program is not liable for legal malpractice damages, do we have an obligation to notify clients if the panel member drops insurance coverage? Unfortunately, the law is not clear on the answer to this question.
Claims Against LRIS Programs
Only four claims against lawyer referral programs have been reported to the ABA in the past fifteen years. All were dismissed prior to trial. In the complaint filed against the Chicago Bar Association, the plaintiff alleged that the bar was negligent and breached its duty of reasonable care because the referred lawyer was not an expert in the specific area of law and did not have adequate malpractice insurance. The plaintiff argued:
- the LRIS was liable for negligent representation under the "voluntary undertaking" doctrine
- the LRIS was liable as a referring lawyer under the rules of professional conduct.
The court, however, granted the Chicago Bar Association's motion to dismiss. It ruled that the lawyer referral service could not be held liable for the legal malpractice that the referral attorney committed. In addition, the court held that the lawyer referral service is not a "lawyer" and was not subject to the rules of professional conduct that govern the division of fees and professional responsibilities between lawyers. According to the court, "the mere taking of a referral fee as a referring agency rather than as a referring lawyer will not suffice to make [the referral service] an insurer or otherwise vicariously accountable for the actions of the attorney to whom the matter is referred."
While this decision does not govern courts in other jurisdictions, it may well prove persuasive and may well indicate what another court would decided if faced with a similar case.
Lawyer referral programs can take simple precautions to reduce their chances of being successfully sued for negligent referral or malpractice. First, consumers expect more from a bar- sponsored lawyer referral service than they do when looking for an attorney in the yellow pages. Indeed, LRISs pride themselves on providing a public service, and as a result, they must establish some sort of panel qualifications to meet the public's expectations.
Second, a program should not imply panel member standards or criteria that it does not verify. If you say "experienced," then verify experience. If you say "has malpractice insurance," then verify coverage.
Third, consider adding a statement to your attorney referral form that states "All lawyer referral members must have in force a malpractice insurance policy with minimum limits of $_____ to accept referrals. You must notify us immediately upon receipt of this referral if your malpractice insurance has lapsed so that we may refer the client to another LRS member."
Finally, establish rules for reviewing client complaints and removing panel members who do not meet the service's standards. Do not allow today's client complaints to turn into tomorrow's liability claims.
Liability claims against lawyer referral programs are always a threat, even though they are, thankfully, few and far between. Lawyer referral directors should be aware of the potential for liability, and they must clearly and honestly communicate to clients the services that the LRIS and its panel members provide. Ultimately, these common-sense precautions will protect the LRIS, the sponsoring bar, and most importantly, the client.
Sheree Swetin is the Staff Director of the ABA Standing Committee on Lawyers' Professional Liability and the Standing Committee on Lawyer Referral and Information Service. If you would like a copy of the Chicago Bar Association decision reported in this article, contact Sheree Swetin at 312/988-5755, or by e-mail at firstname.lastname@example.org
LRIS Plan Amendments
by James F. Dwyer
Established in March 1981, the New York State Bar Association's Lawyer Referral and Information Service (NYSBA LRIS) was the state bar's attempt to help the public find attorneys in counties where no local bar association-sponsored lawyer referral service existed. From its beginning, the NYSBA LRIS operated to cooperate with, but not to duplicate, local services. In fact, its plan specifically stated:
The Service shall cooperate with and assist local and regional lawyer referral services. The Service shall not make referrals to lawyers in any geographic area of the state where an operating lawyer referral service exists; in such cases referrals will be made directly to the existing referral service. [emphasis added]
As the NYSBA LRIS grew, its operations improved. Malpractice insurance, for example, became a condition of panel membership in 1982. The panel application became more detailed, with a certification and agreement for the attorney to sign. Quality control measures, such as follow-up with attorneys and clients, were initiated. Staff attended annual ABA workshops in order to improve and to establish a network of contacts with other lawyer referral providers. The program instituted subject matter panels in three substantive areas in 1996, with the Committee on Lawyer Referral Service members reviewing and ruling on each application.
As the number of consumers contacting local bar-sponsored programs grew, the NYSBA LRIS Committee became increasingly concerned about their ability to provide quality referrals. In some instances a local bar officer was responsible, during his or her term, for an LRIS that had no offices. Sometimes the local bar officer responsible for making referrals happened to be the only medical malpractice attorney in the county, a situation that could make meaningful referrals impossible in that area. In at least one situation, the local bar officer making the referrals also was an assistant district attorney. Consumers, as a result, were unable to obtain referrals in that county for a criminal defense attorney due to ethical constraints on the assistant district attorney. In addition, many programs had restricted hours and limited panels, both of which created difficulties in terms of public access.
In March 1996, the ABA approved the NYSBA LRIS as in compliance with the ABA Model LRIS Rules. The LRIS, in the meantime, was making increasing referrals to local bar services as a result of its advertising, initial handling and screening of each inquiry. Under the then existing NYSBA LRIS plan, all that a local bar had to do to receive a referral was to have an "existing referral service."
This approach, however, raised two concerns. First, consumers were responding to the NYSBA LRIS advertising and likely assumed that the referred lawyer would meet NYSBA LRIS qualifications, regardless of whether a local service actually made the referral. The NYSBA LRIS, however, had in place no standard by which to assess the quality of the local service and the manner in which it operated.
Second, there were potential federal antitrust implications in the NYSBA LRIS plan. By abstaining from operating the service in the same area of the state as a local service, it arguably gave the appearance of not competing with the service, when in fact its intent simply was not to duplicate existing, effective services.
After discussing the problems of referrals to local programs, the NYSBA LRIS Committee proposed amendments to the NYSBA LRIS plan that would allow the NYSBA LRIS to operate in counties where the local service was not in substantial compliance with the ABA model rules on lawyer referral. If the NYSBA established general standards and criteria that the local bar service must meet, the anti-trust problem would be addressed and the public would be better assured of a quality service.
Initially, the Committee drafted the amendment in anticipation of cooperative support from the affected local bars. It, however, withdrew that version, and, after much study and review, it substituted the following language:
The Service shall not make referrals to lawyers in any geographic area of the state where (an operating) a comparable lawyer referral service exists; in such cases referrals will be made directly to the existing referral service. ( To the extent practicable, the) A comparable ( S) service ( will) shall be ( operated in accordance) defined as one that, to the extent practicable, substantially complies with the American Bar Association ( Standards and Practices) Model Rules For a Lawyer Referral Service. A determination that a local or regional lawyer referral service is not comparable shall be made by the NYSBA Executive Committee upon recommendation of the Committee on Lawyer Referral Service.The primary purpose in proposing the amendment, which the New York State Bar House of Delegates approved in January 1998, was to provide a better public service, not to interfere in local bar association affairs or to serve as an evaluator of local bar association programs.
In its advertising, the NYSBA LRIS represents to the public that it is "the right call for the right lawyer," and that it has the ABA stamp of approval. It operates as a public service and strives to make the best possible referral for a person who needs an attorney. Since the NYSBA LRIS refers to local operations one third of the calls that this publicity generates, it needs to be sure that the clients themselves receive quality referrals.
The NYSBA LRIS desires to work with local programs to assist them in improving their operations and perhaps in obtaining ABA approval. While the NYSBA LRIS has not yet made a negative determination regarding any local service in the state, if it does so at some point, it will be with the primary purpose of providing a better public service.
James F. Dwyer is a member of the ABA Standing Committee on Lawyer Referral and Information Service.
LRIS NewsNominations Sought for 1998 Cindy A. Raisch Award
The ABA Standing Committee on Lawyer Referral and Information Service is seeking nominations for the 1998 Cindy A. Raisch Award. The award recognizes the enhancement of public service-oriented lawyer referral and information programs that provide access for moderate income consumers across the country. The nominee should be any individual, group or organization demonstrating exceptional achievement(s) or for providing superior service to or support of a public service-oriented lawyer referral and information program.
Information on the award will be mailed to all lawyer referral program directors and to bar association directors in August. Submissions are due in early December and the Award will be presented at a luncheon of the National Association of Bar Executives during the 1999 ABA Midyear Meeting. For more information, contact Jane Nosbisch, ABA LRIS Assistant Staff Director, 312/988-5754, e-mail: email@example.com
LRIS Workshop Convenes
The 1998 LRIS Workshop will be held in Portland, Oregon on October 14-17 at the historic Benson Hotel. New to the workshop this year are specialized tracks for bar leaders, experienced LRIS program managers, and a fundamentals track. Topics for bar leaders and experienced program managers include: developing an LRIS business plan, developing a proactive board and committee, promoting the LRIS within the legal community, and ethics discussions.
The fundamentals track will include discussions on follow-up procedures, marketing within a limited budget, and staff training procedures. Plenary sessions include a "hot topics" forum on emerging technologies, brief service delivery mechanisms in the legal marketplace, and the art and science of building "virtual relationships" through e-mail and web sites.
For more information contact Jane Nosbisch, ABA LRIS Assistant Staff Director, 312/988-5754, e-mail: firstname.lastname@example.org
Free Advice and Counsel at Your Fingertips
Have you ever wanted to be able to consult with someone quickly about an LRIS management issue? In its first six months of operation, the ABA's LRIS List Serve has covered topics such as: the applicability of certain federal statutes in the remittance of initial consultation fees, "best practices" concerning record retention, the viability of liability waivers, and the effectiveness of marketing through community fairs and public radio sponsorships.
What do some of your colleagues think of the LRIS List Serve?
"The LRIS List Serve is like having a team of experts at my disposal, in one room, discussing issues of concern. I can enter the discussion if time permits; if not, I can save the conversations for perusal later." Audrey Osterlitz, New York State Bar Association LRIS
"I have particularly enjoyed the List Serve, and the opportunity it provides to discuss issues of concern in our referral services. Discussion is very practical rather than just 'general theory.' It's great! There also is a sense of camaraderie that develops with regular contact..." Duane Stanley, Hennepin County Bar Association LRS
"The List Serve is an enormously helpful tool...As issues come up we now can share the knowledge, ideas, and resources of bar associations across the country." Allen Charne, Association of the Bar of the City of New York LRIS
All that you need to join the free LRIS List Serve is an e-mail address! The List Serve is a discussion group for LRIS program managers and all people interested in lawyer referral programs. It's quick and easy to join. Just send an e-mail to Jane Nosbisch, ABA LRIS Assistant Director, at email@example.com indicating your LRIS program affiliation. It's as simple as that!
Congratulations. . .
To Ron Abernethy, the recipient of the San Joaquin County Bar Association 1998 Law Day Award. Ron received this award in recognition of his public service contributions in his professional career and his work on behalf of the bar association. Ron's leadership has influenced the way lawyer referral programs operate both locally and nationally. He is a strong supporter of quality standards, experience requirements and peer review of panel members and has been instrumental in developing national policy and drafting model court rules for implementation at the state and local level.
Ron also focuses his efforts on education and training for local public defenders and county officials. He has served on the Board of Directors of the Center for Positive Prevention Alternatives, the San Joaquin County Citizens Jail Advisory Committee and the San Joaquin County Pretrial Services Advisory Board. He has been active in the local bar for more than twenty years.
Congratulations, Ron, we are proud to have you as a member of the lawyer referral community!
The views expressed in Dialogue are those of the authors and do not necessarily represent the policies of the American Bar Association. The contents of this magazine have not been approved by the ABA House of Delegates and do not constitute ABA policy. © 2001 American Bar Association ISSN 1092-2164