chevron-down Created with Sketch Beta.
September 11, 2008

Subject Matter Panels - Discussion of the Rationale

Discussion of the Rationale

Why should a consumer needing legal assistance contact a lawyer referral service, as opposed to selecting a lawyer out of the phone book? The ability to provide a legitimate answer to this question will determine the financial viability and survival of your lawyer referral service.

Operating a lawyer referral service has evolved from a mechanism for connecting clients who need a lawyer with lawyers who need clients into the operation of a business. Unless the lawyer referral service can provide the legal consumer with a valid reason to choose LRIS, it will not survive as a business in today's competitive legal market place. This fundamental economic realization, coupled with the recognition that a lawyer referral service must operate as a public service, has provided a powerful answer to the question of why the legal consumer should choose a lawyer referral service. That answer, the existence of subject matter panels, provides the service with a powerful marketing tool and insures that it provides a product upon which the legal consumer can rely and of which the sponsoring organization can be proud. Without subject matter panels neither the consumer nor the service can be assured that the lawyer to whom the referral is made is qualified to handle the legal issue involved or even has handled that sort of legal problem before.

Rule X of the American Bar Association Model Rules for Operation of a Lawyer Referral and Information Service sets forth the basic parameters of a subject matter panel; that it be based on objectively determinable criteria designed to insure that the lawyer is qualified to handle the case.

"A qualified service shall establish specific subject matter panels, and may establish moderate and no fee panels, foreign language panels, alternative dispute resolution panels and other special panels which respond to the referral needs of the consumer public, eligibility for which shall be determined on the basis of experience and other substantial objectively determinable criteria." (Model Rule X)

Over 85% of the lawyer referral service in the United States operate some form of subject matter panels. Unfortunately, what many programs refer to as subject matter panels are in reality self-selection or area of preference panels. In these panels there is no attempt to determine whether a prospective panel member is qualified to handle referrals in a particular area. Instead, the individual attorneys' self-select areas in which they wish to receive referrals. In some instances, the participating attorneys are required to sign a statement saying they are competent to handle cases in the particular area selected. A panel is then established by listing the names of all attorneys who have selected a particular area. For those services relying on panel registration fees as a major source of income, there is often an increased fee charged for multiple panel memberships, and multi-panel membership is openly encouraged in an attempt to increase revenue.

When operating a self-selection or area of preference panel it is not uncommon for a Service executive director to receive an application, submitted by a lawyer fresh from the bar exam, which includes a check mark next to every panel or area of practice available for selection. While it is clear that admission to the Bar allows a recent admittee to handle any sort of case or client they manage to obtain, it does not guarantee their competence. For example, it is highly unlikely that a recently admitted lawyer is qualified to try either a capital murder case or a complex medical malpractice action. A self-selection program does little, if anything, to insure either the LRIS or the legal consumer using the service that the lawyer receiving the referral has some experience in the area of the callers legal need. A lawyer's eligibility for membership on such self-selection panels is clearly not based on "experience and other substantial objectively determinable criteria." For this reason, a program of self-certification will never comply with the model rules and can never allow the LRIS to truthfully argue that the legal consumer should choose the LRIS based on the existence of subject matter panels.

In order to operate in conformance with ABA Model Rule X, a LRIS program must have specific objective criteria that an applicant is required to meet prior to subject matter panel admission. For example, a rule requiring that a prospective panel member personally handle, to completion, a specific number of matters in the subject area within an immediately preceding number of years would comply with the Model Rule X. A felony criminal law panel that requires each panel member to have personally tried five felony cases within the immediately preceding five years is an example of this sort of objectively determinable criterion for panel membership. A domestic relations panel that requires panel members and prospective panel members to have completed, within the immediately preceding two years, ten hours of Bar Association approved continuing legal education in the field of domestic relations, is another example of a program with substantial objectively determinable criteria for membership.

Subject matter panel requirements must, of course, be based on prevailing local standards of practice and should have the goal of insuring that each LRIS case is referred to a lawyer qualified to handle the legal problem involved. Subject matter panel requirements should never be confused with a program of Legal Specialization in which the licensing authority is certifying that a particular lawyer is an expert or specialist in a particular field. The goal of subject matter panels is much more modest, the competence of each lawyer affiliated with the LRIS.

Experience in those Lawyer Referral and Information Services across the county which have adopted "substantial objectively determinable criteria" for their subject matter panels provides several valuable lessons for any program considering adoption or refinement of such panels.

First, most existing panel members currently receiving referrals in a particular subject matter area will more than likely meet any reasonable objectively determinable criteria that may be imposed.

Second, client satisfaction with the referral service has universally improved and the number of cases returned for re-referral has decreased following adoption of a subject matter panel program that complies with Model Rule X.

Third, the elimination of panel members who are not qualified to handle cases in a particular area has significantly reduced the amount of staff time devoted to dealing with problems generated by client complaints and cases returned for re-referral.

Fourth, and probably most importantly, the Lawyer Referral and Information Service with real subject matter panels is in a position to offer the legal consumer something they can not obtain through random selection of an attorney from the yellow pages; a lawyer who is qualified in the subject matter of the clients legal need.

This ability to provide a qualified lawyer should play a prominent role in any LRIS advertising and is the primary reason only those services who comply with the Model Rules are allowed to utilize the ABA logo and the slogan, "The Right Call For the Right Lawyer."

Most of the LRIS programs across the country who do not have subject matter panels or who have subject matter panels that do not comply with Model Rule X, report that implementation of such a program would not receive the support of their local LRIS governing committee.

In some services, the governing committee tends to view the LRIS as a program for providing cases for new lawyers while giving the bar association staff somewhere to send the inevitable callers seeking legal help. They privately see the LRS as little more than a quasi-pro bono program of the Bar Association. This perception of the role filled by a referral service, while perhaps true at one time, is certainly no longer the case.


The Model Rules for Operation of a Lawyer Referral and Information Service are designed to ensure that lawyer referral services operate as a public service. One of the significant provisions of these rules is the requirement that each service has and maintains these rules is the requirement that each service has and maintains subject matter panels. These panels are often, and perhaps more accurately, referred to as experience panels.

The core idea behind experience panels is that a lawyer referral service should refer clients only to those lawyers who by some objectively measurable criteria have demonstrated that they possess the knowledge and skill necessary to resolution of the clients problem.

Model Rule X provides:

"A qualified service shall establish specific subject matter panels, and may establish moderate and no fee panels, foreign language panels, alternative dispute resolution panels and other special panels which respond to the referral needs of the consumer public, eligibility for which shall be determined on the basis of experience and other substantial objectively determinable criteria."

Establishment of these panels requires the thoughtful participation of the LRS Committee and careful preparation. It is essential that the establishment of an experience panel not be confused with a program of legal specialization. The goal of experience panels is simply to insure that panel members have the basic minimum experience necessary to handle cases in a particular area. The process involves the following:

  1. Survey local lawyers whose practice is in the particular area of law. For example, in setting up a matrimonial panel you would contact local matrimonial practitioners and with their assistance determine what issues are likely to arise in a matrimonial case. Those issues would certainly include child custody, spousal support, and distribution of a pension plan. Make sure you include current panel members receiving referrals in the area of law involved.
  2. Determine the degree of familiarity with these issues a lawyer should have before handling a matrimonial case. It may be a requirement that the attorney have handled 3 child custody cases within the past 3 years or it could be as simple as a requirement of attendance at a continuing legal education program on child custody within the last 6 months. The requirements in a rural community would be different from those in a metropolitan area. Similarly, the requirements for a medical malpractice or estate-planning panel would be more stringent than those for a misdemeanor criminal panel.
  3. Educate panel members as to why the LRS is establishing experience panels. Point out that most people who have been receiving referrals will have the requisite experience to qualify for admission to the new panels. Explain that the change is not only to improve the quality of the service but also to allow the service to more aggressively market itself. Understand that some panel members may object and choose to no longer participate in the program.
  4. Develop panel application forms that clearly set forth the requirements that must be met for panel admission (i.e. 3 matrimonial cases involving distribution of a pension plan in the past 3 years). On the application form provide space for the applicant to document the required experience. For court cases, have the applicant list the case name, court, court number, and name of opposing counsel.
  5. Periodically review the requirements and adjust by adding, deleting, or modifying them, as local circumstances require.
  6. Do not allow anyone on the panel who fails to meet the experience requirement, do not under any circumstance provide for a "grandfather" provision, which allows long time lawyers to remain on the panel even though they do not meet admission requirements. If the LRS has a pro-bono or low-income program suggest that a lawyer who does not have the requisite experience accept cases in one of those programs and thereby gain the experience needed.

Services who establish subject matter/experience panels report that complaints from clients are reduced and that many of their problem lawyers either do not qualify or choose not to participate. Once established, on Service has abandoned subject matter/experience panels and all report that such panels represent a dramatic improvement in the service to consumers they are able to provide.

Not infrequently LRIS committee members fail to realize that the LRIS is a major source of fee generating cases for solo and small practitioners. Panel members recognize that the target audience of a LRIS is not the low-income population but the moderate-income legal consumer. The typical LRIS client needs a lawyer to handle dissolution, buy a house, draft a will, or handle a minor criminal case. They need a lawyer on only a few occasions and have the ability to pay for legal services. Unless the LRIS can successfully market itself with this target audience, it will fail and panel members, most of whom cannot afford a major marketing effort on their own, will suffer.

Those LRIS committees who understand they are overseeing a business have been quick to embrace Rule X compliant subject matter panels. They realize the ability to properly match clients with qualified lawyers competent to handle the clients legal problem is what separates the LRIS from all other delivery systems in the post-Bates mad scramble for clients world of lawyer advertising. With subject matter panels, the LRIS can truthfully advertise, "The Right Call for the Right Lawyer."

Many committee members are reluctant to tell another lawyer, licensed to practice law and thus legally allowed to handle any matter, that he or she will not be allowed to receive referrals from the LRIS. This reluctance exists even where the committee member would categorically refuse to refer one of his or her personal clients to a specific panel member. For example, no lawyer would send a client to another lawyer if that other lawyer was unqualified, inept, incompetent, rude, abusive, suffering for a substance abuse problem, or possessed some other disqualifying factor.

Recognition by committee members that they would not be confident enough in the service provided to use the LRIS themselves is the first step in changing entrenched attitudes opposing subject matter panels. Even the most traditional of committee members will usually admit that it would be inappropriate for a first year lawyer to handle a class action product liability case involving multi-national corporations. One key to overcoming reluctance on the part of committee members to accept the value of subject matter panels is the realization that a LRIS is a business owned and operated by the local Bar Association, a business whose operation reflects directly on the Bar Association. To the legal consumer the bar association name on the masthead means that each panel member carries the bar's implied, if not actual, stamp of approval.

Subject matter panels do not prohibit a lawyer from practicing law. Similarly they do not place the referral service in the position of proclaiming a lawyer unqualified. Instead, in adopting such panels, the LRIS is simply requiring its employee lawyers to be qualified lawyers before they are allowed to carry the Bar Association stamp of approval. If the lawyer can show his or her competence in an objectively determinable manner they can participate in the service. If they cannot demonstrate such competence, they are free to practice law in some other circumstance.

An important goal of a LRIS is to operate so that other members of the bar are comfortable in referring cases to the service because they know the person referred will receive a referral to a qualified lawyer. Lawyer to service referrals are an important source of clients for a well run LRIS. Subject matter panels can be used to convince other lawyers to refer cases to the LRIS much as they are used to convince the legal consumer to choose the service when seeking a lawyer.

The legal consumer should choose a lawyer referral service when doing so will insure their referral to a lawyer qualified to handle the consumer's particular legal problem. Without subject matter panels there can be no such assurance and the question of what is a valid reason for choosing a lawyer referral and information service when seeking a lawyer remains unanswered.