On March 9, 1990 the Board issued Formal Ethics Opinion 90-F-122 describing the activities of PITLA, stating that PITLA, U.S.A., Inc. (PITLA) is a lawyer referral service not operated, sponsored or approved by a bar association; and, that pursuant to DR 2- 103(D)(3) it is improper for lawyers to participate in the lawyer referral service promoted and operated by PITLA.
PITLA filed litigation against the Board in the U.S. District Court, Middle District of Tennessee alleging that the actions of the Board violated their First Amendment Rights and violated the Federal Anti-Trust Laws.
The Board and PITLA have entered into a settlement agreement wherein PITLA U.S.A., Inc. and its lawyer/members may ethically participate as a cooperative advertising venture as follows, to-wit:
A. PITLA agrees to employ with its Tennessee member/lawyers the following Tennessee Joint Advertising Cooperative Agreement with minimum standards for participating attorneys:
PERSONAL INJURY TRIAL LAWYERS ASSOCIATION USA, INC.
MINIMUM STANDARDS FOR PARTICIPATING ATTORNEYS
1. Each participating attorney must be a member in good standing of a bar of one of the states, Puerto Rico, or the District of Columbia.
2. Each participating attorney must maintain malpractice insurance in the minimum amount of $100,000.00 per occurrence.
3. Each participating attorney must have participated in the resolution of at least 50 personal injury cases.
4. Each participating attorney must satisfactorily represent the clients referred to him; in the event that a participating attorney does not, in the judgment of PITLA's general counsel, satisfactorily represent a client, PITLA shall suspend the attorney from PITLA participation.
5. No participating attorney may have been convicted of any bar disciplinary infraction which would, in the opinion of the general counsel of PITLA, adversely impact upon the attorney's ability to represent clients received through theefforts of PITLA.
6. No participating attorney may own, govern or operate PITLA nor may any attorney who owns, governs, or operates PITLA receive cases through the efforts of PITLA.
B. PITLA will forward the names of every person from Tennessee who calls the telephone number(s) which appear in its Tennessee advertisements with a personal injury claim to a PITLA Tennessee member/lawyer. In particular, PITLA agrees not to screen out callers because the caller's claim is found not to be one involving negligence or one in which there is no insurance.
C. The name of one Tennessee member/lawyer shall appear on all PITLA advertisements originating in Tennessee.
D. All Tennessee member/lawyers shall be provided an opportunity to review all PITLA advertisements originating in Tennessee before they are released to the public. Any Tennessee member/lawyer who disapproved of a PITLA advertisement to originate in Tennessee may cancel his agreement with PITLA upon giving the notice provided in that agreement.
E. PITLA shall clearly and conspicuously place in its advertisements originating in Tennessee, in addition to the disclaimer required by DR 2-101(c), a statement that "In some states, including Tennessee, PITLA does not function as a lawyer referral service, but as an advertising cooperative."
F. In any Tennessee market area, no more than 25 percent of the rotation slots may be acquired by any one Tennessee member/lawyer.
G. The initial letter sent out to all PITLA callers shall include a clause requesting the caller to contact PITLA if he or she is in any way dissatisfied with the representation received from a PITLA attorney.
H. PITLA shall mail to a random selection of Tennessee callers a questionnaire seeking an assessment of the PITLA member/lawyer's performance and the caller's level of satisfaction.
I. In the event PITLA receives complaints or information that a client is dissatisfied with the actions of any Tennessee PITLA member/lawyer, the General Counsel of PITLA, after giving the lawyer involved an opportunity to respond, shall determine whether to remove that lawyer from PITLA membership after giving the notice provided in PITLA's agreement with the lawyer. It is the intent of PITLA that any single significant infraction by a lawyer will be grounds for removal.
J. When a Tennessee lawyer is removed from PITLA membership on the basis of a significant infraction as determined by the General Counsel, notice of the removal shall be given to the Board.
The Board's agreement with PITLA is hereby adopted as Formal Ethics Opinion 90-F- 122(a), thereby amending its prior opinion on March 9, 1990.
This 23rd day of October, 1990.
Barbara J. Moss
Harris A. Gilbert
Cecil D. Branstetter
APPROVED AND ADOPTED BY THE BOARD