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					                        9PINION NO. 92-5
                         March 26, 1992

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     A labor union communicated with the inquiring attorney re-
garding the union’s preparation of a preferred provider guide
(the ‘Guidew). The purpose of the Guide is to provide union
members with names of professionals who are wiUing to provide
services to thexnat a discounted rate. The Guide would list at-
torneys and other professionals. The union would select five
attorneys in each of five areas of law, including personal injury
law, family law, criminal law and two ether areas not identified
by the in~iring attorney, whose names and addresses would be in-
cluded in the Guide.
     As a condition of being listed in the Guide, an attorney
would be required to indicate to the union that he would provide
legal sewices to union members at a reduced rate. Far example,
a personal injury attorney would be asked to limit contingency
fees to 25% of the recovery. Additionally, an attorney listed in
the Guide would be required to pay a one-time fee for his er her
share of the cost of printing the Guide. The listing in the
Guide would extend for fourteen months.
     Copies of the Guide would be placed with the union manager
at the union office. When a union member sought advice regarding
legal matters, the union manager would provide the member with a
copy of the Guide. The union member would then be free to select
one of the five attorneys in the relevant field of law. The
union manager would not provide the member with any recommenda-
tion regarding any one of the attorneys listed. Additionally,
the union member would not be required to use an attorney on the
list, being free to seek the services of an attorney not listed
in the Guide on any fee basis that could be agreed upon between
them.
     The union manager would solicit recommendations from union
members in selecting the attorneys to be contacted regarding
listings in the Guide. Attorneys would not initiate contact with
the union, nor would the union advertise for proposals from
members of the Bar.
     Occasionally, the union would invite attorneys listed in the
Guide to come to the union effice to meet with union members.
The attorney would discuss with them various aspects of the area
of law in which they practice. The visits would be designed to
enable interested union members to learn more about their legal
rights.
      O
S2UESTIN:
     Would an attorney violate any of the Arizona Rules of
Professional Conduct by being listed in the Guide and by making
the mentioned visits to the union office?

E~~~LRuJ@s           IW OIWED:
    ER 7.1.          g!ommuniations Concerning a Law erts Services
                            c
     A lawyer shall not make a false or misleading communication
about the lawyer or the lawyerSs sewices.   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 con-
     sidered as a whole not materially misleading;
          (b) is likely to create an unjustified expectation
     about results the lawyer can adhieve, or states or implies
     that the lawyer can achieve results by means that violate
                 —
     the rules of professional conduct or other law; or
          (c) compares the lawyer’s services with other lawyers’
     services, unless the comparison can be factually substan-
     tiated.
     ER 7.2.          ~dvertisinq
          (a) Subject to the requirements of ER 7.1 and ER 7.3,
     a la~er may advertise services through public media, such
     as a telephone directory, legal directory, newspaper or
     other periodical, outdoor, radio or television, or through
     written communication.
             *****


          (c) A lawyer shall not give anything of value to a
     person for recommending the lawyer’s senices, except that a
     lawyer may pay the reasonable cost 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.
             *****

          (e) Written communications to prospective clients for
     the purpose of obtaining professional employment are subject
     to the following requirements:
               (1) Such written communications shall be plainly
     marked ‘Advertisement~ on the face of the envelope and at
     the top of each page of the written communication in type no


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smaller than the largest type used in the written communi-
cation; and
          (2). A copy of each such written communication
shall be retained by the lawyer for three years. If written
communications identical in content are sent to two or more
prospective clients, the lawyer nay comply with this re-
quirement by retaining a single copy together with a list of
the names and addresses of persons to whom the written com-
munication was sent.
     *****


     (9) A lawyer or his partner or associate or any other
lawyer affiliated with him or his firm may be recommended,
employed or paid by, or may cooperate with, one of the fol-
lowing offices or organizations that promote the use of his
senices or those of his partner or associate or any other    ‘
lawyer affiliated with him or his firm if there is no inter-
ference with the exercise of independent professional judg-
ment in behalf of his client:
             *****


          (4) Any bona fide organization that recommends,
furnishes or pays for legal services to its members or
beneficiaries, provided the following conditions are satis-
fied:
               (A) Such organization, including any affi-
liate, is so organized and operated that no profit is
derived by it from the rendition of legal senices by
lawyers, and that, if the organization is organized for pro-
fit, the legal services are not rendered by lawyers em-
ployed, directed, supemised or selected by it, except in
connection with matters where such organization bears ulti-
mate liability of its members or beneficiary;
               (B} Neither the lawyer, nor his partner or
associate, nor any other lawyer affiliated with him or his
firm, nor any non-lawyer, shall have initiated or promoted
such organization for the primary purpose of providing
financial or other benefit to such lawyer, partner, asso-
ciate or affiliated lawyer;
               (C) Such organization is not operated for
the purpose of procuring legal work or financial benefit for
any lawyer as a private practitioner outside of the legal
senices program of the organization;
               (D) The member or beneficiary to whom the
legal services are furnished, and not such organization, is
recognized as the client of the lawyer in the matter;


                       (92-5)   3
               (E] Any member or beneficiary who is en-
titled to have legal sez%ices furnished or paid for by the
organization may, if such member or beneficiary so desires,
select counsel other than that furnished, selected or ap-
proved by the organization for the particular matter in-
volved; and the legal senice plan of such organization
provides appropriate relief for any member or beneficiary
who asserts a claim that representation by cmnsel fur-
nished, selected or approved would be unethical, improper or
inadequate under the circumstances of the matter involved
and the plan provides an appropriate procedure for seeking
such relief;
               (F) The lawyer does not know or have cause
to know that such organization is in violation of applicable
laws, rules of court and other legal requirements that
govern its legal service operations; and
               (G) Such organization has filed with the
appropriate disciplinary authority at least annually a
report with respect to its legal service plan, if any, show-
ing its terms, schedule of benefits, subscription charges,
agreements with counsel, and financial results of its legal
sezn?iceactivities, or if it has failed to do so, the lawyer
does not know or have cause to know of such failure.
     *****

ER 7.3.      pirect Contact with Pros~ective Clients
     (a) A lawyer may not solicit professional employment
from a prospective client with whom the Zawyer has no family
or prior professional relationship in person or by tele-
phone, when a motive for the lawyer’s doing so is the
lawyer’s pecuniary gain.
     (b) Subject *O the requirements of ER 7.1 and ER 7.2,
and paragraph (c) herein, a lawyer may initiate written com-
munication, not involving personal or telephone contact,
with persons known to need legal services of the kind pro-
vided by the lawyer in a particular matter, for the purpose
of obtaining professional employment. Such written communi-
cation shall be clearly marked on the envelope and on the
first page of the communication contained in the envelope,
as follows:
     ADVERTISING XATERIAL:
     THIS COMMERCIAL SOLICITATION HAS NOT BEEN APPROVED BY
     THE STATE BAR OF ARIZONA.
Said notification shall be printed in red ink, in all capi-
tal letters, in type size at least double that used in the
body of the communication. If the solicitation advertises
representation on a contingent or ‘no recovery, no feeor

                          (92-5] 4
     basis, it shall also state that the client may be liable for
     costs and expenses.
          (c) At the time of dissemination of such written com-
     munication, a copy shall be forwarded to the Clerk of the
     Arizona Supreme Court and the State Bar of Arizona at its
     Phoenix office. If a written communication identical in
     content is sent to two or more prospective clients, the
     lawyer may comply with this requirement by forwarding a
     single copy together with a list of the names and addresses
     of persons to whom the written communication was sent.

QEn?zQN:
     Nothing submitted to us suggests that the Guide would pro-
vide any false or misleading information violative of ER 7.1.
The inquiring attorney should be careful that the Guide does not
create an unjustified expectation in the union member about re-
sults the listed attorney can achieve because of the wording and
any other features of the attorney’s listing in the Guide. Addi-
tionally, the attorney should exercise care that the listings in
the Guide do not make any comparisons among the five attorneys in
each area of law, or with other attorneys who are not listed, un-
less the comparisons can be factually substantiated.
     If an attorney initiates written communication with persons
known to need legal senices for the purpose of obtaining profes-
sional employment, ER 7.3(b) requires that the written communi-
cation be labeled in the manner provided in the rule. In the
situation presented, an attorney listed in the Guide is not ini-
tiating the contact. The labor union will prepare the Guide and
provide it to the union members. Therefore, the Guide does not
need to be labeled in the manner specified in ER 7.3(b).
     The union~s propesal contemplates visits to the union office
by attorneys listed in the Guide. The purpose of the visits will
not be to solicit professional employment from prospective
clients :Aawn to need legal semices. Rather, the visits are in-
tended to educate union members regarding their various legal
rights. The attorneys’ in-person visits to the union office are
not prohibited by ER 7.3(a). w    our Opinion No. 88-07
{September 13, 1988) (law firm may properly conduct legal semi-
nars which conform to guidelines promulgated in our Opinion No.
87-23 (October 26. 1987): promotional brochures for the seminar
need n~t be labeled as ‘ad~ertisementsH).

     The attorney~s inquiry is governed principally by ER 7.2.
     The attorneys listed in the Guide will pay a one-time
printing cost as a condition of being included therein. An at-
torney is prohibited by ER 7.2(c) from giving anything of value
to a person for recommending his or her services. However, that
rule allows an attorney to pay for the reasonable costs of ad-
vertising or written communication permitted under the rule. The

                             (92-5) 5
    pa~ent of printing costs by the attorneys who are ta be listed
    in the Guide would fall within this exception, and would not be
    considered giving something of value in exchange for recommending
    the attorneys sezwices.
         Under ER 7.2(e), written communications to prospective
    clients for the purpose of obtaining professional employment must
    bear the ~Advertisementw label. Here, the attorney is not send-
    ing written communications to prospective clients. The union
    will make available to its members copies of the Guide listing
    several attorneys and other professionals. The Guide does not
    have to be labeled in the manner described in ER 7.2(e). accord,
    our Opinion No. S8-07, supra, and our Opinion No. 90-05 (June 26,
    1990) (law firm’s hi-monthly publication on construction law sent
    to clients and non-clients need not contain the disclaimer
    required by ER 7.2(e)).
         Pursuant to ER 7.2(g), an attorney may be recommended by an
    organization that promotes the use of his or her senices pro-
    vided there is no interference with the exercise of the attor-
    ney’s independent professional judgment on behalf of his or her
    client. A bona fide organization may recommend legal services if
    it meets the criteria set forth in ER 7.2(g)(4). In the facts
    presented, the union is a bona fide organization recommending
    legal services to its members. The union will derive no profit
    from the legal senices rendered by attorneys listed in the
    Guide. ER 7.2(g)(4)(A). The inquiring attorney did not initiate
    or promote the preparation of the Guide in order to gain a
    financial benefit for himself. ER 7.2(g)(4)(B). The union is
    not operated for the purpose of procuring legal work or financial
    benefit for any attorney. ER 7.2(g)(4)(C). The union member,
    and not the union itself, will be recognized as the client of the
    attOrney. ER 7.2(g)(4)(D). The union members are permitted to
    select one of the attorneys listed in the Guide, but are also
    free to select any attorney not so listed and to pay any fee
    agreed upon between them. ER 7.2[g)(4)(E). None of the facts
    submitted by the inquiring attorney indicate that the union is in
    violation of any a~.plicablelaws or rules governing its provision
    of the Guide. ER 7.2(g)(4)(F). And, under ER 7.2(g)(4)(G), the
    union must file annual reports on forms that are available at the
    State Bar offices.
         Based upon the facts submitted, the committee is of the
    opinion that it will be permissible, under the Arizona Rules of
    Professional Conduct, for an attorney to be listed in the Guide
    and to visit the union office to give seminars to union members
    about their legal rights.




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