Advisory Opinion:
2093
Year Issued:
2005
RPC(s):
RPC 1.1, 1.4(b), 1.7(b), 2.1, 7.2(c)
Subject:
Lawyer`s referrals to a particular chiropractor
QUESTION PRESENTED
Whether an attorney can ethically agree to refer clients to a chiropractor, in exchange for which the chiropractor will waive fees chargeable to the attorney or client for reports and time spent in testifying.
RESPONSE
This limited quid pro quo agreement is not, per se, unethical. The reciprocal understanding is not exclusive. The attorney has a mandatory duty, under RPC 1.4(b), to explain the arrangement “to the extent reasonably necessary to permit the client to make informed decisions . . . .” At a minimum, this would include the cost savings and the possible adverse effect on the client’s case should the terms become known to an adverse party or factfinder.
FACTS
A chiropractor has solicited referrals from an attorney, in exchange for which the physician would give free reports and testimony necessary to resolve the claim with the tortfeasor’s insurer. The attorney’s typical contingent fee agreement deducts costs before calculating the percentage fee. The attorney reported there is no obligation on the attorney to send referrals to the chiropractor, nor is there any agreement that the chiropractor would send patients to the attorney; there is no understanding the attorney would prioritize the chiropractor’s bill or otherwise give the physician a preference for payment greater than required by law. The attorney did note that the chiropractor will charge defense counsel for time spent in giving testimony.
DISCUSSION
In its simplest terms, the agreement does not violate the RPCs. However, the attorney must use caution that the arrangement does not involve additional features that would violate the RPCs. In particular, the committee notes that if the arrangement were to include an agreement to give reciprocal referrals, it would violate RPC 7.2(c). The attorney’s referrals to the chiropractor would comprise “value” given in trade for the chiropractor’s referrals to the attorney.
In addition, if the attorney has any responsibilities to the chiropractor under the arrangement, the attorney would need to take RPC 1.7(b) into account and avoid any conflict of interest, make proper disclosures to the client, and obtain waivers of potential conflicts that are eligible for waiver. RPC 2.1, which requires that the attorney exercise independent professional judgment in representing the client, would prohibit referrals if the arrangement impaired the attorney’s independence. In all events, RPC 1.1 requires the attorney to exercise competence in selecting expert witnesses.
The committee expresses no opinion about the practice of referring personal injury clients to chiropractors.
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