Opinion 91-24
(December 1991)

You have asked for an opinion on a potential conflict of interest situation. Your inquiry does not relate to your own activities, but to that of others, specifically Assistant District Attorneys ("ADA") and Public Defenders ("PD"). You first inquire as to whether, assuming no "referral fee is sought, it would be appropriate for an ADA or PD to refer a crime victim to your firm for representation in a civil action seeking redress. You next ask whether it would be ethical for the referrer to obtain a "referral fee." Your third question appears to be a restatement of the first, which is whether an ADA or PD may refer personal injury clients to specific law firms.

DISCUSSION


Although your question does not ask for advice as to your own conduct, but as to the conduct of others, it raises important questions. Further, since no specific conduct is identified, but rather general matters, our response must be likewise general.

It is the opinion of the Committee that there is no absolute prohibition against an ADA or PD referring a crime victim for civil redress. Each potential referral would be subject to normal conflict of interest considerations, based on the facts. For example, there would be a conflict of interest if in any instance the crime victim were adverse to the ADA/PD client. There is also a potential conflict between the interests of the ADA and the victim in treatment of the accused at plea bargain and/or sentencing. In addition, a PD could not refer a crime victim where the PD is representing the alleged criminal. Rules 1.7 and 1.9(b) apply in such a situation.

The payment of any "referral fee," whether direct or indirect, would violate the conflict of interest rules, even in those cases where referral would otherwise be proper. As set forth in Pa. R.P.C. 1 .7b,

Conflict Interest: General Rule:


(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's ...own interest unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after full disclosure and consultation.

Based on this rule, we consider that payment of a referral fee would represent a conflict of interest and be violative of the rule. Similarly, any quid pro quo (implied or explicit) would also violate the rule. A referral to just one firm, or a series of referrals to one or two firms, could well be an invitation for a future job offer or future referrals of other matters back to the ADA or PD once out of public service. For instance, the ADA or PD might reasonably expect criminal defense referrals once in private practice.

In both instances, the requirement of 1.7(b)(2), including full disclosure to, consultation with and consent of the client would be necessary. In the case of a referral from an ADA such full disclosure, consultation and consent would be difficult, if not impossible, to accomplish given the broad nature of the "client" served by the prosecutor's office.

   

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.