87-23: Professional Independence of Lawyers; Direct Contact with Prospective Clients

10/1987

Attorney participating with nonlawyer financial planner in presenting seminars for general public on financial planning, estate planning, and probate problems.

FACTS

The inquiring attorney has asked whether he may, with ethical propriety, present a series of seminars on financial planning, estate planning, and probate problems. The attorney proposes to conduct the seminars with a nonlawyer who offers financial planning services. The attorney will speak on estate planning and probate problems. The financial planner will speak on financial planning.

The seminars will be advertised, probably on television and in the newspaper. The attorney and the financial planner will share equally the advertising expenses and seminar costs. The seminars will be free and open to the general public.

During the seminars, the attorney and financial planner will explain orally and in writing that they are not partners. They will invite persons attending the seminars to evaluate their respective performances. In addition, the financial planner will encourage persons in attendance to participate in an initial consultation with either the financial planner or the attorney at no charge.

Any services rendered after the free consultation will be the subject of an agreed-upon fee. The financial planner and the attorney will not share any fees.

QUESTION

Is it ethically proper for the inquiring attorney to conduct the proposed series of seminars under the conditions described above?

ETHICAL RULES INVOLVED

ER 1.6. Confidentiality of Information

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation,....

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ER 5.4. Professional Independence of a Lawyer

(a) A lawyer or law firm shall not share legal fees with a nonlawyer,...

(b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.

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ER 5.5. Unauthorized Practice of Law

A lawyer shall not: ... (b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law

ER 6.1. Pro Bono Publico Service

A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations, by service in activities for improving the law, the legal system or the legal profession, and by financial support for organizations that provide legal services to persons of limited means.

ER 7.1. Communications Concerning a Lawyer's Services

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it:

(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;

(b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the rules of professional conduct or other law; or

ER 7.2. Advertising

(a) Subject to the requirements of ER 7.1, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor, radio or television, or through written communication not involving solicitation as defined in ER 7.3.

(b) A copy or recording of an advertisement or written communication shall be kept for three years after its last dissemination along with a record of when and where it was used.

It is appropriate to state the guidelines that apply under the Model Rules to attorney participation in seminars:

1. It is proper for a lawyer to participate in a legitimate seminar on a legal subject as long as the seminar is run in a proper manner.

2. Seminar panelists may properly consist of lawyers or laymen or both. Those attending the seminar may properly consist of lawyers or laymen or both.

3. A lawyer may properly be paid for participating in a seminar.

4. The seminar announcement and other written materials may list the name of the lawyer participant with a short, factual statement of the lawyer's qualifications.

5. Where a lawyer or law firm is sponsoring a seminar and advertising it, the advertisement must contain the name of a lawyer responsible for its content. The lawyer must retain a copy and schedule of the advertisement as required by ER 7.2(b).

6. The purpose of the seminar must be to inform rather than to give advice. It is improper for an attorney to answer questions of laymen concerning their specific individual problems. Anyone inquiring about specific problems must be admonished to consult an attorney for legal advice.

7. Because of problems related to the disclosure of client confidences, because of the potential for solicitation, and because there are certain restrictions on pretrial publicity, no reference should be made to pending cases being handled by the attorney.

It is no longer necessary that the seminar be sponsored by a bar association, school, or other responsible public or private organization. The 1977 amendments to the Code eliminated the requirement originally found in Ethical Consideration 2-2 that lawyers must be “acting under proper auspices" when participating in educational programs. Thus, "a bona fide educational program may be conducted by a lawyer or law firm without the requirement that an outside sponsor be obtained for the program." ABA Informal Opinion 1489 (January 25, 1982). The Model Rules do not impose a requirement as to sponsorship.

It is no longer necessary that the main purpose of the seminar be to educate rather than to make money for the lawyer. This requirement was based on EC 2-2 of the ABA Model Code of Professional Responsibility which stated that "participation in seminars... should be motivated by a desire to educate the public to an awareness of legal needs.

(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 advertising or written communication permitted by this rule and may pay the usual charges of a not-for-profit lawyer referral service or other legal service organization.

(d) Any communication made pursuant to this rule shall include the name of at least one lawyer responsible for its content.

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ER 7.3. Direct Contact With Prospective Clients

A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship by mail, in person, or otherwise, when a motive for the lawyer's doing so is the lawyer's pecuniary gain. The term "solicit" includes contact in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful.

ER 7.4. Communication of Fields of Practice

A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer shall not state or imply that the lawyer is a specialist.

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OPINION

Prior to Arizona's adoption (with some amendments) of the A.B.A. Model Rules of Professional Conduct ("the Model Rules”), this committee generally approved lawyer participation in seminars, subject to specific guidelines. See Opinions Nos. 70-2, 71-20, 71-30, 73-8, 73-10, 73-24, and 81-11. These guidelines were based on numerous restrictions in the Code of professional Responsibility (“The Code") and on ABA Informal Opinion 840 (September 23, 1965). With the adoption of the Model Rules, and following the United States Supreme Court's decision in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977), and its progeny, some of the restrictions which inspired our seminar guidelines in the above opinions no longer apply. The Model Rules do, however, contain prohibitions which are the same as or similar to those found in the Code and to provide information relevant to the selection of the most appropriate counsel rather than to obtain publicity for particular lawyers.” The Model Rules contain no counterpart to EC 2-2.

Furthermore, in Bates v. State Bar of Arizona, supra, the United States Supreme Court, in addressing the concern that advertising would adversely affect the professionalism of the Bar and erode a client's trust in his attorney, stated:

[W]e find the postulated connection between advertising and the erosion of true professionalism to be severely strained. At its core, the argument presumes that attorneys must conceal from themselves and from their clients the real-life fact that lawyers earn their livelihood at the bar. We suspect that few attorneys engage in such self-deception. And rare is the client, moreover, even one of modest means, who enlists the aid of an attorney with the expectation that his services will be rendered free of charge.

Bates, 433 U.S. at 368-369, 97 S. Ct. at 2701.

It is unrealistic to assume that an attorney who takes the time, trouble, and expense to offer a free seminar and consultation to the public, does so without the expectation that his efforts will generate some business. To require that the lawyer's primary purpose be to educate, rather than to make money, would place the Bar in the difficult position of second-guessing the attorney's "true” motive. Accordingly, this requirement is eliminated.

The inquiring attorney has indicated that the financial planner will encourage seminar participants to take advantage of the offer of a free consultation by the planner and the attorney. Such conduct may constitute solicitation which is prohibited by ER 7.3. ER 7.3 is designed to prevent the "potential for abuse” inherent in "a direct interpersonal encounter" wherein a layperson is subject to the “the private importuning of a trained advocate.” Comment to ER 7.3. The Committee interprets ER 7.3's ban on solicitation as applying to a personal contact directly between an attorney and a specific potential client with whom the attorney has had no prior relationship, where the contact is initiated by the attorney for pecuniary gain.

1. It does not matter that it is the planner rather than the attorney who encourages the consultation. The attorney cannot escape ethical constraints by using others to do things which he is forbidden to do.

The committee believes that an offer to provide a consultation, whether free or paid, written or oral, made to all seminar participants generally, unaccompanied by any pressure or coercive conduct, does not constitute solicitation under ER 7.3 if the following two requirements are met: first, the offer must be extended to a general group rather than to a specific person; second, there must be no pressure or importuning on the seminar participants to accept the offer. The attorneys conduct, or the conduct of one acting on his behalf, must be such that the seminar participants are free to decline the offer and to walk away easily at the conclusion of the seminar.

If the seminar participant accepts the offer and freely decides to meet with the attorney, he has exercised the same right as does any person who consults an attorney. That consultation, whether it results in the person's retaining the attorney or not, does not run afoul of ER 7.3.

It is accordingly our opinion that the inquiring attorney may ethically participate in the described seminar, so long as the guidelines set forth in this opinion and in the applicable ethical rules are followed.

Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.