Appeal from Montgomery Circuit Court. (CV-93-1218). Randall Thomas, Trial Judge.
Released for Publication May 27, 1995.
Ingram, Almon, Shores, and Cook, JJ., concur. Houston, J., concurs specially. Maddox, J., Dissents.
The opinion of the court was delivered by: Ingram
R. W. Lynch Company, Inc. ("Lynch"), and Robert H. Ford, an Alabama attorney, filed a declaratory judgment action in the Montgomery Circuit Court to determine whether a television advertisement, created by Lynch, violated Rule 7.2(c) of the Alabama Rules of Professional Conduct. The disciplinary commission of the Alabama State Bar Association ("the Bar") had previously issued an ethics opinion concluding that an earlier version of the advertisement violated Rule 7.2(c). The Bar appeals from the trial court's judgment declaring that the advertisement did not violate Rule 7.2(c).
Rule 7.2, Alabama Rules of Professional Conduct, provides:
"A lawyer who advertises concerning legal services shall comply with the following:
"(c) A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may pay the reasonable cost of any advertisement or written communication permitted by this rule and may pay the usual charges of a not-for-profit lawyer referral service."
The pertinent portion of the comment to Rule 7.2 states:
"A lawyer is allowed to pay for advertising permitted by this Rule, but otherwise is not permitted to pay another person for channeling professional work. This restriction does not prevent an organization or person other than the lawyer from advertising or recommending the lawyer's services. Thus, a legal aid agency or prepaid legal services plan may pay to advertise legal services provided under its auspices. Likewise, a lawyer may participate in not-for-profit lawyer referral programs and pay the usual fees charged by such programs."
Lynch, a California advertising agency specializing in attorney advertising, produces an "Injury Helpline" television marketing program currently in use in several states. Several law firms or sole-practitioner attorneys may jointly purchase advertising from Lynch on the "Injury Helpline" commercial. The commercial, directed at individuals with personal injury claims, lasts approximately 30 seconds. The commercial expressly states: "Advertising paid by sponsoring attorneys. Not a lawyer referral service." The attorneys' or firms' names and addresses appear on the commercial, and a 1-800 toll-free telephone number is provided for the viewer to call. The calls are received by an answering service. The caller is asked for only his or her name, telephone number, and Zip Code; the answering service obtains no further information concerning the caller's situation. The caller's information is then forwarded by Lynch to the attorney or firm that has contracted for the advertising rights to that caller's geographical area, determined by the caller's Zip Code. The attorney then contacts the caller to schedule an appointment. Lynch is responsible for placing the commercials and for maintaining the answering service for the participating attorneys.
In 1989, the Bar reviewed a similar "Injury Helpline" commercial produced by Lynch and ruled that it was impermissible under Temporary Rule DR-2-102 (the predecessor to the current Rule 7.2) because, the Bar stated, Lynch's program was a "for-profit referral service." In 1992 Lynch asked the Bar to again review the "Injury Helpline" advertisement, after making minor ...