Runners and Cappers

Runners and Cappers

Rule 7.2(b) forbids a lawyer to compensate, give, or promise anything of value to a person for recommending the lawyer's services, subject to a short list of exceptions.¹ The ban would mean little if a lawyer could satisfy it by hiring someone else to do the recommending, and the runner or capper is that someone. A runner or capper watches for accidents and other events likely to produce legal work, whether by following police radio traffic or checking who has been admitted to a hospital. He then approaches the people affected and steers them to a particular lawyer. The two labels describe overlapping functions, and on an exam you can treat them alike. The test is whether the lawyer is paying someone to find prospects and steer them to the lawyer.

Delegation does not help the lawyer. A lawyer who is restricted in how to advertise and solicit may not employ another person to advertise or solicit in ways the lawyer is forbidden to use directly.² Delegation changes who performs the act and leaves unchanged what the prospect experiences. The prospect in these cases is usually an accident victim, and the in-person approach is the form of solicitation the rules treat most severely. Ohralik v. Ohio State Bar Association sustained the ban on in-person solicitation of accident victims, and the Supreme Court has since called face-to-face solicitation "a practice rife with possibilities for overreaching, invasion of privacy, the exercise of undue influence, and outright fraud." The "coercive force of the personal presence of a trained advocate" and the "pressure on the potential client for an immediate yes-or-no answer to the offer of representation" justify strong controls.³ A runner at the bedside applies the same pressure, and the injured person may not know that the friendly visitor is paid by the lawyer.

Paid intermediaries also revive the policing concern behind the baseline ban. People who are paid for funneling cases to lawyers are tempted to break the advertising and solicitation rules, and their violations are hard to detect because they work out of the lawyer's sight.⁴ A runner paid for each signed client earns more by pressing harder and exaggerating more, and the lawyer's payment is at once the only lever over that conduct and the source of the temptation. The per-client payment is itself something of value given to a person for recommending the lawyer's services, so the lawyer violates Rule 7.2(b) directly before the solicitation rules come into play.

The lawyer's usual defense is that the runner acted without instruction, and it fails. A lawyer must make reasonable efforts to ensure that nonlawyer employees and agents act compatibly with the lawyer's own obligations (Rule 5.3), and a lawyer may not violate the Rules through the acts of another (Rule 8.4(a)). The details of those rules belong elsewhere. A lawyer who pays for results and never asks about methods cannot disclaim the methods.

The prohibition does not reach legitimate marketing support, and the difference lies in what the person is paid to do. A lawyer may compensate persons engaged to provide marketing or client development services, such as publicists, public-relations personnel, business-development staff, and website designers, because each is paid for labor on the lawyer's own communications.⁵

The two lawyers differ in what the paid person does and how the person is rewarded. The first agent approaches identified people and is paid for each one delivered. The second helps the lawyer speak to the public in the lawyer's own name, for pay unrelated to any particular client. A salary does not cure the first arrangement, because a salaried employee who spends the day in hospital corridors telling accident victims to hire the lawyer is a runner on the payroll. The same logic limits lead generators. A lawyer may pay one for leads, but the generator may not recommend the lawyer to the people it identifies, and the lawyer may not pay it with a share of legal fees.⁶