1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139-144
145-150
151-156
157-162
163-168
169-174
175-180
181-186
187-192
193-198
199-204
205-210
211-216
217-222
223-228
229
repeal of Rule 7.5. Rather, Rule 7.5(a) would need to be revised to prohibit, rather than permit, the
use of trade names. Apart from the trade name issue, the Committee believes that Paragraphs (b)
through (d) provide useful guidance to lawyers about specific problems involving law firm names.
Indeed the issues addressed by these paragraphs are currently addressed in DR 2-102(B), (C), and
(D).
PROPOSED RULE 7.6
INTERMEDIARY ORGANIZATIONS
prepaid legal insurance provider or a similar organization the business or activities of which
includes the referral of its customers, members, or beneficiaries to lawyers or the payment for or
provision of legal services to the organization's customers, members or beneficiaries in matters for
which the organization does not bear ultimate responsibility.
from an intermediary organization if the lawyer knows or reasonably should know that:
associated, or a lawyer with whom the lawyer is associated in a firm;
prohibited by the Board of Professional Responsibility; or
with all requirements imposed by the Board; or
[1] For there to be equal access to justice, there must be equal access to lawyers. For there
to be equal access to lawyers, potential clients must be able to find lawyers and have the economic
resources needed to pay the lawyers a reasonable fee for their services. In an effort to assist
prospective clients to find and be able to retain competent lawyers, lawyers andnonlawyers alike
have formed a variety of organizations designed to bring clients and lawyers together and to provide
a vehicle through which the lawyers can be fairly compensated and the clients can afford the
services they need. Some of these intermediary organizations operate as charities. Others operate
as businesses. Because they ultimately bear the liability of their insureds, liability insurance
companies which pay for or otherwise provide lawyers to defend their insureds are not intermediary
organizations within the meaning of this Rule.
[2] The requirements set forth in paragraph (b) are intended to protect the clients who are
represented by lawyers to whom they have been referred or assigned by an intermediary
organization. It is the responsibility of each lawyer who would participate in the activities of an
intermediary organization to act reasonably to ascertain that the organization meets the standards set
forth in paragraph (b). Normally it will be sufficient for the lawyer to ascertain that the organization
has registered with the Board of Professional Responsibility and to review the materials the
organization has filed with the Board in compliance with the Board’s reporting requirements. If,
however, by virtue of his or her participation in the activities of an intermediary organization, a
lawyer comes to know that the organization does not meet the standards set forth in paragraph (b),
the lawyer shall terminate his or her participation in the activities of the organization and should so
advise the Board of Professional Responsibility.
“Knows”See Rule 1.0(f)
“Reasonably Should Know”See Rule 1.0(k)
A lawyer shall not compensate or give anything of value to a person or organization to
recommend or secure the lawyer’s employment by a client, or as a reward for having made a
recommendation resulting in employment by a client, except that he may pay the usual and
reasonable fees or dues charged by any of the organizations listed in DR 2-103(D).
Lawyers shall not request a person or organization to recommend or promote the use
of their services or those of their partner or associate, or any other lawyer affiliated with
them or their firm, as a private practitioner, except as authorized by DR 2-101, and except
that:
Referrals may be requested from a lawyer referral service operated, sponsored,
or approved by a bar association and may pay its fees incident thereto.
The lawyer may cooperate with the legal service activities of any of the offices
or organizations enumerated in DR 2-103(D)(1) through (4) and may perform legal
services for those to whom the lawyer was recommended by it to do such work if:
The person to whom the recommendation is made is a member or
beneficiary of such office or organization; and
The lawyer remains free to exercise his or her independent
professional judgment on behalf of his client.
Lawyers or their partners or associates or any other affiliated lawyersmay be
recommended, employed or paid by, or may cooperate with, one of the following offices or
organizations that promote the use of their services or those of the partners or associates or
other affiliated lawyers if there is no interference with the exercise of independent
professional judgment in behalf of the client:
A legal aid office or public defender office:
organization.
Operated, sponsored, or approved by a bar association.
A military legal assistance office.
A lawyer referral service operated, sponsored, or approved by a bar association.
services to it members or beneficiaries provided the following conditions are
satisfied:
Such organization, including any affiliate, is so organized and operated
that no profit is derived by it from the rendition of legal services by lawyers,
and that, if the organization is organized for profit, the legal services are not
rendered by lawyers employed, directed, supervised or selected by it except
in connection with matters where such organization bears ultimate liability of
its member or beneficiary.
Neither lawyers, nor partners, nor associates, nor any other affiliated
lawyers, 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, associate or affiliated lawyer.
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 services program of the organization.
The member or beneficiary to whom the legal services are furnished, and
not such organization, is recognized as a client of the lawyer in the matter.
Any member or beneficiary who is entitled to have legal services
furnished or paid for by the organization may, if such member or beneficiary
so desires, select counsel other than that furnished, selected or approved by
the organization for the particular matter involved; and the legal service plan
of such organization provides appropriate relief for any member or
beneficiary who asserts a claim that representation by counsel furnished,
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.
is in violation of applicable laws, rules of court and other legal requirements
that govern its legal service operations.
Such organization has filed with the appropriate disciplinary authority at
least annually a report with respect to its legal service plan, if any, showing
its terms, its schedule of benefits, its subscription charges, agreements with
counsel, and financial results of its legal service activities or, if it has failed to
do so, the lawyer does not know or have cause to know of such failure.
If the Proposed Rule is adopted, The Committee recommends that the Court authorize the
Board of Professional Responsibility to promulgate regulations governing the registration of and
those set out in the more detailed version of this Proposed Rule issued in the Committee’s
Preliminary Draft, including the following:
practice of law; and
are not employees of the organization, the organization permits the participation of notless
than four lawyers licensed to practice in Tennessee, each of whom maintains an office in the
geographical area served by the intermediary organization; provided, however, that the
organization may require such participating lawyers to
experience; and
nature of its activities as a intermediary organization; and
if:
beneficiaries or customers about specific lawyers who are cooperating with the
intermediary organization; or
of legal services with respect to a particular matter; and
customers to lawyers upon a preliminary determination by the organization that theclient's
claims or defenses have merit or economic value; and
the organization refers its members, beneficiaries or customers are properly licensed and
competent to handle the matters referred to them; and
byparticipating lawyers to its members, beneficiaries or customers, or the means to be used
to accomplish those objectives, if such limitation would materially impair the lawyer's ability
to provide the client with the quality of representation that would be provided to a client who
had not been referred to the lawyer by the organization; and
event that a lawyer to whom a matter is referred cannot undertake or continue the
representation in compliance with these rules; and
member, beneficiary, or customer of the intermediary organization will establish an
relationship with the member, beneficiary or customer and agrees that it will
not interfere with the lawyer's representation of the client, request or require that the lawyer
reveal information protected by Rule 1.6, or request or require that the lawyer take any other
action prohibited by these rules; and
its members, beneficiaries, or customers about the lawyer to whom they were referred and
promptly forwards a report of any such complaint to the Office of Disciplinary Counsel;
and
paragraph (b)(1) from accepting such referrals and, if it is organized for profit, does not
permit its lawyer-employees to represent clients in violation of paragraph (b)(2); and
complied with all reporting requirements imposed by the Board for the purpose of
enabling lawyers to ascertain from materials on file with the Board whether the organization
is a qualified intermediary organization.
There is no Model Rule specifically dealing with this topic. Because of this silence the
ABA Ethics Committee has held in Formal Ethics Opinion 87-355 (1987) that lawyers may
cooperate with for-profit prepaid legal insurance plans provided that the lawyer'srepresentation of
the referred can be conducted in accordance with generally applicable of rules of professional
conduct. Model Rule 7.3(D), however, expressly recognizes the general legitimacy of lawyers
cooperating with intermediary organizations by providing that “a lawyer may participate with a
prepaid or group legal service plan operated by an organization not owned or directed by the lawyer
which uses in-person or telephone contact to solicit memberships or subscriptions for the plan from
persons who are not known to need legal services in a particular matter covered by the plan.”
Rule 5.8 in the Preliminary Draft conditioned a lawyer’s right to cooperate with an
intermediary organization upon the lawyer acting reasonably to ascertain that the intermediary met
twelve distinct characteristics of a "qualified" intermediary organization. Upon further
reflection, the Committee concluded that its proposal would impose an unreasonable burden on
lawyers, would not provide meaningful protection for the public, and in the end would be
inconsistent with the profession’s commitment to expanding access to justice by facilitating efforts
of intermediary organizations to help prospective clients secure competent and affordable legal
representation.
Thus, in Proposed Rule 7.6, the Committee has dropped much of the regulatory detail that
wasincluded in Rule 5.8 and recommends that intermediary organizations be required by the
Supreme Court to register with the Office of Disciplinary Counsel of the Board of Professional
Responsibility and to demonstrate that their operations conform to such standards as the Court
approves as necessary for protection of the public. Under Proposed Rule 7.6, the lawyer must only
determine that his or her participation will not lead to a violation of any of the generally applicable
Rules of Professional Conduct and that the organization is registered with the Office of
Disciplinary Counsel. This is a much more manageable inquiry for the lawyer, and the Committee