Ethics Opinion 795

By Committee on Professional Ethics

GAVEL14

NEW YORK STATE BAR ASSOCIATION

Committee on Professional Ethics

Opinion #795 – 04/19/2006Topic:     Medical doctor/lawyer advertising for malpractice claimants.
Digest:    A medical doctor admitted to the New York bar whose business plan is to advertise for patients to assess the merits of prospective malpractice claims for referral to other lawyers must disclose in advertising that he or she is a lawyer and may not split fees with the other lawyers without obtaining client consent, ensuring that the overall fee is reasonable and taking joint responsibility for the matter.
Code:     DR 1-102(A), DR 2-101, DR 2-103(A) (2)(e), DR 2-103(B), DR 2-107, DR 7-109(C).

QUESTION

1.          May a medical doctor who is a member of the New York bar advertise his or her availability as a doctor to assess the viability of medical malpractice claims, and his or her availability to refer viable claimants to lawyers, without disclosing the doctor’s membership in the bar or intention to share in any contingency fee recovered by the lawyer to whom the client is referred?

BACKGROUND

2.          A medical doctor who is also a member of the New York bar currently performs expert medical services for other lawyers in connection with medical malpractice matters, including identifying claims as meritorious, assisting counsel in pretrial proceedings on medical issues, and locating appropriate testifying experts for trial in medical malpractice actions.   The inquirer believes that a substantial number of potential malpractice claimants who are unwilling to consult a lawyer, at least initially, about injuries that may give rise to medical malpractice claims may be willing to consult with a physician on that subject.   Accordingly, to attract this clientele, the inquirer proposes to advertise the inquirer’s medical credentials to the public, offering to ascertain at no cost whether such possible claimants, in the inquirer’s judgment, have claims sufficiently meritorious to warrant referral to a lawyer.
3.          The inquirer’s advertising would state that the purpose of the cost-free physical examination is to determine whether in a medical doctor’s judgment a viable legal claim exists, and the inquirer’s willingness to refer such viable claims to a lawyer.   The inquirer would not refer any claimant to a lawyer without the claimant’s advance consent.   The advertising would not disclose that the doctor is also a lawyer, nor the inquirer’s expectation and intention of being paid a fee by the lawyer to whom the claimant would be referred.   In all cases, the inquirer would act solely as a medical consultant, and not represent the claimant as counsel in a malpractice action.   In consideration of these services, the inquirer intends to receive a portion of the contingency fee, if any, earned by the lawyer to whom the matter is referred.

OPINION

4.          At the threshold, we mark the limits of our opinion.   We offer no view on the rules governing advertising by the medical profession for services unrelated to the practice of law.   Assuming the law and rules of the medical profession permit it, we know of no reason why a physician who happens to have a law degree may not advertise for patients without reference to the law degree as long as the advertiser is offering and actually providing only medical (or for that matter other non-legal) services to the patient.   As far as we are concerned, the term “medical” or other “non-legal” services includes offering solely a medical opinion about whether specific medical care may be responsible for an alleged injury. 5.          That does not end the inquiry, though, because to us the question is whether a doctor/lawyer occupied in assessing injuries as legal claims is engaged in the practice of law.   No easy line unambiguously divides a purely medical opinion about the sources and causes of an injury and a legal opinion on the viability of a medical malpractice claim.   The line has consequences for law and ethics, for the non-lawyer/doctor and for the lawyer/doctor.   For instance, it may be that, solely as medical practitioners (not experts), non-lawyer/doctors may evaluate the viability of medical malpractice claims without thereby engaging in the unauthorized practice of law – an issue of law on which we do not opine.   Likewise, it may be that lawyer/doctors may advertise their ability to evaluate, for medical malpractice cases, the standard of care employed and the extent to which any shortfall in that case resulted in injury, without thereby subjecting the lawyer/doctor to rules governing lawyer advertising. 6.          Here, though, we have a doctor/lawyer whose practice consists of considering the viability of a medical malpractice claim for referral to a lawyer.   In this context, we believe that the doctor/lawyer is engaged in the practice of law.   In N.Y. State 678 (1996), considering a similar question in the context of a lawyer acting as a divorce mediator, we said: [A]uthorities have disagreed as to whether to conceptualize divorce mediations as a legal or nonlegal service when provided by lawyers.   Our judgment is that, on the present state of facts about how lawyers function as mediators, lawyers who serve as mediators should be presumed to be rendering a legal service.   Presumably a lawyer who serves as a mediator outside of the law office, gives no legal advice or opinions, and does not draw up the agreement is not acting in any legal capacity, and is not then governed by the lawyer’s code.   This would, however, be a rare case. N.Y. State 678 (citations omitted)(emphasis in original). 7.          We think that this conclusion is even more true here, where the inquirer intends to consider not only medical issues of causation but also the legal issues of the viability of a claim, which may include questions such as the timeliness of the claim, whether the potential damages warrant pursuit of the claim, and the likelihood of success on the merits.   Although instances may occur in which the inquirer might defer such questions to independent counsel, we believe that such instances are likely to be the exception, not the rule.   It follows that, because the services being advertised are legal services, the inquirer’s advertising must comply with the rules on lawyer advertising.   Among other things, this means that advertising that omits the inquirer’s legal background would be “false, deceptive or misleading” in violation of DR 2-101. 8.          If the inquirer discloses his or her legal background, however, a separate concern arises, and that is the omission from advertising of the inquirer’s intention to refer all matters to other lawyers for a share of a fee.   Whether a lawyer must disclose in advertising an intention to enlist the aid of other counsel depends on the circumstances of a matter or practice area.   We believe, however, that a lawyer holding himself or herself out as a medical malpractice lawyer, with the present intention of never practicing as such but instead referring all such cases to others, would be engaged in false and misleading advertising in violation of DR 2-101.   Cf.DR 2-103(A)(2)(e)(a lawyer may not solicit professional employment from a prospective client by written or recorded communication if the lawyer “intends or expects, but does not disclose, that the legal services necessary to handle the matter competently will be performed primarily by another lawyer who is not affiliated with the soliciting lawyer as a partner, associate or of counsel”). 9.          Even if we assume the exceptional case – one in which the doctor/lawyer is fully able to separate the medical from the legal – we still conclude that ethical issues infect the inquirer’s business plan.   In such circumstances, the principal difficulties with the inquirer’s plan lie not with the proposed advertising, but with the proposed arrangements between the inquirer and the lawyers who would take the matters.   Even if the inquirer were not a lawyer or resigned from the bar tomorrow, the Code forbids the proposed arrangements, whether with a doctor or anyone else. 10.        DR 2-103(B) prohibits payments for legal referrals except in certain circumstances, none of which apply here.   Here, the lawyer to whom the inquirer refers the matter would be compensating the inquirer for having made a recommendation resulting in employment by a client, a clear violation of that rule.   A lawyer may not violate a Disciplinary Rule, nor circumvent one through the actions of another.   DR 1-102(A).   We believe that this Rule necessarily means that a lawyer may not aid or abet another lawyer in violating a Disciplinary Rule.   Thus, this referral-for-a-fee program is impermissible, even for one acting solely as a doctor, because as a lawyer the inquirer would be aiding the violation of a Disciplinary Rule by another lawyer. 11.        That is not all.   DR 2-107 proscribes dividing legal fees with a lawyer who is not a partner or associate of the lawyer’s firm except where the other lawyer acts as a lawyer for the client, assumes joint responsibility for the matter (or performs services in proportion to the fee received), and receives a fee with the client’s consent that, together with the other lawyer’s fee, is reasonable in the aggregate.   Because the inquirer does not intend to act as counsel nor advise the client of participation in any fee arrangement, the proposed course of action would violate this rule.   See alsoN.Y. State 698 (1998) (lawyer may not accept medical malpractice case from a medical consultant if consultant requires the attorney’s agreement to a contingent consultant fee as a precondition). 12.        To the extent that the inquirer may seek to accommodate his or her conduct to the requirements of DR 2-107 – that is, by assuming joint responsibility for the representation as a lawyer who receives a portion of a reasonable contingent fee with client consent – the inquirer clearly could not do so without full compliance with the lawyer advertising rules, including disclosure in advertising of membership in the bar.

CONCLUSION

13.        We end with the same caveat with which we began.   We offer no opinion whether a medical doctor may advertise the doctor’s availability to provide medical opinions to patients on whether a breach of a reasonable standard of medical care caused a patient’s injury.   If a medical doctor may do so, we know of no reason why that same medical doctor may not thereafter be paid a fixed (not a contingent) fee by a lawyer as a consulting or testifying expert in a medical malpractice action.   See DR 7-109(C) (lawyer may not pay a witness contingent on the outcome of a case).   In our view, however, a member of the New York bar who holds a medical degree, and who purports to act only as a medical doctor with patients visiting the doctor solely as a doctor, may not establish an impermissible referral service for lawyers, split fees with those lawyers, and conceal these arrangements from prospective clients in advertising or otherwise.                                                                         (32-05)

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