Ethics Advisory Opinion 14-03

Utah State Bar
Ethics Advisory Opinion Committee

Opinion Number 14-03

Issued April 22, 2014

ISSUE

1.         Do the Utah Rules of Professional Conduct prohibit referral agreements between two attorneys that require one of the attorneys (the “Referring Attorney”) to refer to the other (the “Receiving Attorney”) all clients that have a certain specified type of products liability claim?

 OPINION

2.         The Committee concludes that an agreement between two attorneys which requires the Referring Attorney to refer to the Receiving Attorney all clients that have a certain specified type of claim may likely violate various provisions of the Utah Rules of Professional Conduct (the “Rules”).

FACTS

3.         The Referring Attorney, licensed to practice in the State of Utah, and the Receiving Attorney, licensed to practice elsewhere, enter into an agreement governed by Utah law (the “Agreement”) to jointly pursue certain kinds of products liability claims (the “Claims”) of individuals located in the State of Utah.  The Agreement provides in relevant part:
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Ethics Advisory Opinion 14-02

Utah State Bar
Ethics Advisory Opinion Committee 

Opinion Number 14-02 

Issued January 14, 2014

ISSUE

1.         Is an Agreement between a non-lawyer Marketer and a Law Firm where the Marketer conducts telephone marketing to solicit and refer clients to Law Firm in violation of the Rules of Professional Conduct where the payment to the Marketer matches a percentage of the fees paid to the Law Firm by the clients referred to the Law Firm by the Marketer?

2.         If the Agreement is in violation of the Rules of Professional Conduct must the Attorney retained by Marketer to enforce the Agreement inform the appropriate professional authority pursuant to Rule 8.3(a)?
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Ethics Advisory Opinion No. 13-02

 UTAH STATE BAR 

ETHICS ADVISORY OPINION COMMITTEE 

Opinion No. 13-02 

Issued April 9, 2013 

Issue 

      1.   The requesting attorney seeks an opinion on several related matters, which the Committee has combined into three general areas of inquiry: (i) may an attorney pay a non-lawyer, directly or indirectly, for a referral; (ii) may an attorney enter into a joint marketing and/or cross-referral arrangement with a non-attorney; and (iii) may an attorney acquire an ownership or equity interest in, or making a loan to, a business, with the expectation of receiving referrals from the business.

Opinion

2.   Subject to the exceptions outlined below, the opinions of the Committee regarding the stated issues are:
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Ethics Advisory Opinion No. 07-01

Issued March 9, 2007
¶ 1. Issue:
May a lawyer purchase the exclusive right to referrals generated from the membership base of an organization whose members from time to time may have need of the legal services offered by that lawyer?

¶ 2. Opinion: The proposed arrangement, which contemplates the exclusive funneling of referrals to one lawyer or firm, is not permitted, as it violates Rule 7.2(b), which prohibits a lawyer from giving anything of value to a person for recommending the lawyer’s services. The fact that the recommendation is made by an organization does not change the outcome here.
¶ 3. Facts: A Utah for-profit organization provides an array of services to its members, including assistance in finding legal representation for its members for various circumstances, including immigration, criminal defense and personal injury following an automobile accident. This organization has solicited a Utah law firm to purchase the exclusive right to receive referrals generated by its membership base, for members who need legal consultation following an automobile accident.
¶ 4. Analysis: Rule 7.2(b) of the Utah Rules of Professional Conduct sets out the basic rule that applies to the issue presented:
(b) A lawyer shall not give anything of value to a person for recommending the lawyer’s services; except that a lawyer may:
(1) pay the reasonable costs of advertisements or communications permitted by this Rule;
(2) pay the usual charges of a legal service plan or a lawyer referral service;
(3) pay for a law practice in accordance with Rule 1.17; or
(4) divide a fee with another lawyer as permitted by Rule 1.5(e).1
This fundamental rule is elaborated upon by Comment [5] to the Rule, which further states: “Lawyers are not permitted to pay others for channeling professional work.”2 Under the plain language of this Rule and the explanatory comment, a lawyer would be prohibited from purchasing exclusive referral rights from the organization, because that would constitute paying another person for recommending the lawyer’s services.3
¶ 5. Rule 7.2(b) contains several exceptions to this blanket prohibition. Subsection 7.2(b)(2) permits a lawyer to “pay the usual charges of a legal service plan or lawyer referral service.” This provision of the Utah Rules of Professional Conduct differs from the American Bar Association Model Rule, which permits a lawyer to pay the usual charges of a legal service plan or a “not-for-profit or qualified” lawyer referral service.4 It would be inappropriate to conclude, however, that the difference between the Utah Rule and the ABA Model Rule was intended to permit a lawyer to avoid the prohibition of Rule 7.2(b) through the use of an organization that is not, in fact, a “lawyer referral service” in even the most colloquial sense of the term.
¶ 6. Comment [6] to Rule 7.2 defines a lawyer referral service as “an organization that holds itself out to the public to provide referrals to lawyers with appropriate experience in the subject matter of the representation.” At a minimum, Rule 7.2(b)(2) requires that the lawyer referral service be available to the public and that it provide referrals to multiple lawyers and law firms, not to a single lawyer or a single law firm.
¶ 7. Comment [6] to Rule 7.2 also defines a legal service plan as “a prepaid or group legal service plan or similar delivery system that assists prospective clients to secure legal representation.” Thus, the “plan” under Rule 7.2(b)(2) must be a provider of legal services to plan members using the services of licensed lawyers.5 The organization at issue provides no legal services to its members; the lawyers do not provide legal services “through the plan.”
¶ 8. Conclusion: The organization in this case is not operated as a public service, but rather channels legal work to a single lawyer or firm who has paid the organization for that privilege. The organization is not, therefore, a “legal service plan” or a “lawyer referral service” within the meaning of Rule 7.2(b)(2), and the proposed exclusive funneling of referrals to one lawyer or firm that has paid for the privilege violates Rule 7.2(b)’s prohibition against giving anything of value to another person for recommending a lawyer’s services.6
Footnotes
1 Utah Rules of Professional Conduct 7.2(b) (2006).
2 Id. cmt. [5].
3 “Person” in Utah is generally defined to include any “individual, firm, company, association or corporation.” See, e.g., Utah Code Ann. §§ 48-2a-101(12); 76-1-601 and 78-27-23 (2006).
4 ABA Model Rules of Professional Conduct 7.2(b)(2) (2002).
5 Utah Rules of Professional Conduct, Rule 7.3, Cmt. [8]. Comment [8] describes lawyers participating in a group or prepaid legal services plan as “provider[s] of legal services through the plan.”
6 As we have concluded that the organization at issue is neither a prepaid or group legal services plan nor a lawyer referral service for which a lawyer may pay the “usual charges” pursuant to Rule 7.2(b), we do not reach the issue of whether this organization violates rule 7.3(a) through its use of in-person or other real-time communications to solicit memberships to the organization.

ETHICS ADVISORY OPINION No. 03-03

Issued June 23, 2003
¶ 1 Issue
: Is it ethical for a lawyer to advertise to provide legal services in Social Security Administration hearings to claimants who have been denied benefits, where nonlawyers are used by the lawyer in providing these services?

¶ 2 Opinion: With due consideration for the rules governing advertising and supervi­sion of nonlawyers assistants, it is not unethical for a lawyer to use nonlawyer para­professionals to provide representation of clients in hearings before a government agency that authorizes nonlawyer representation. In particular, the lawyer does not assist the nonlawyer paraprofessional in the unauthorized practice of law under these circum­stances.1
¶ 3 Background: The United States Social Security Administration permits nonlawyers to appear at hearings as representatives of claimants challenging the denial of Social Security benefits. The hearings are evidentiary and require representatives of claimants to offer direct testimony and to cross-examine adverse witnesses. Lawyers who represent claimants for Social Security Administration benefits often use nonlawyer parapro­fessionals to represent the clients in the agency hearings. These lawyers advertise their services in Social Security Administration matters, but commonly do not disclose in the advertisements that the client’s representative at the hearing is normally a nonlawyer paraprofessional.
¶ 4 Analysis: We have been asked whether an advertisement placed by a lawyer to provide legal services in Social Security Administration hearings to claimants who have been denied Social Security benefits must disclose that the lawyer normally uses nonlawyer para­professionals in making appearances for claimants in such hearings.
¶ 5 Advertising Rules. The first step in the analysis is to review the rules governing advertising. First, “[s]ubject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or television, or through written or recorded communication.”2 But, any advertisement for the lawyer’s legal services must comport with Rule 7.1(a):
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.3
As the comment to the Rule emphasizes, “This Rule applies to all communications concerning the lawyer’s services, including advertising materials.”4
¶ 6 Thus, a disclosure concerning the use of paraprofessionals would only be required if it were necessary to make the advertisement “considered as a whole, not materially misleading.” But, lawyers routinely provide legal services through the use of nonlawyer paraprofessionals and, indeed, are encouraged to do so to make legal services affordable to the broadest spectrum of the population. Thus, we conclude that the advertisement in question is not materially misleading if it does not disclose that the services are often provided through nonlawyer paraprofessionals.
¶ 7 Delegation to Nonlawyers. Social Security Administration rules and regulations permit the appearance of nonlawyer representatives for claimants in Social Security Administration hearings challenging the denial of benefits.5 Without such authority, paraprofessionals would ordinarily not be allowed to provide unassisted representation of a client in an evidentiary hearing. Given the Social Security Administration’s authoriza­tion of nonlawyer professionals to appear as representatives of claimants at its hearings, a lawyer does not act unethically in delegating to paralegals the representation of clients at these hearings. However, the lawyer must comply with his supervisory responsibilities under Rule 5.3,6 which permits nonlawyer paraprofessionals to “act for the lawyer in rendition of the lawyer’s professional services.”7 Rule 5.3 requires, however, that the lawyer provide nonlawyer paraprofessionals appropriate supervision and retain responsi­bility for their work.8
¶ 8 Because the definition of the practice of law in Utah is an issue of law, the Com­mittee is without authority to decide what is and what is not the unauthorized practice of law. However, for purposes of this opinion, we assume that it is not the unauthorized practice of law for a lawyer to use nonlawyer para­professionals in administrative hearings as permitted by the agency’s applicable rules and regulations. Therefore, so long as the lawyer adequately supervises the work delegated to the paraprofessional and retains responsibility for the paraprofessional’s work, the lawyer would not violate Utah Rule of Professional Conduct 5.5(b), which prohibits a lawyer from aiding another person in the unauthorized practice of law.9
¶ 9 Consent. A lawyer may not, however, delegate to a nonlawyer parapro­fessional the representation of the client before an agency proceeding such as a Social Security Administration hearing without consulting with the client as required by Rules 1.2 and 1.4 regarding the means of representation of the client.
¶ 10 Rule 1.2 requires that the lawyer discuss with the client the relative advantages and disadvantages of being represented at the hearing by a nonlawyer paraprofessional, as opposed to being represented by a licensed lawyer.10 Rule 1.4(b) requires that this matter be explained to the client to the extent reasonably necessary to enable the client to make informed decisions regarding the representation.11 Therefore, the lawyer must discuss with the client the lawyer’s intention to delegate the representation of the client at the hearing to a paraprofessional. This discussion must be sufficiently in advance of the hearing that the client will not be prejudiced if he decides to change counsel. If the lawyer regularly delegates paraprofessionals to represent clients at Social Security Ad­ministration hearings, the lawyer should discuss with the client at the time of engagement the lawyer’s normal practice of using a nonlawyer paraprofessional as the client’s repre­sentative at the hearing.
¶ 11 It is good practice, although not required by the Utah Rules of Professional Con­duct, that the lawyer enter a written engagement agreement with the client disclosing that a nonlawyer paraprofessional may represent the client at the administrative hearing.12
¶ 12 Summary: It is not unethical for a lawyer to advertise to provide representation of claimants denied benefits in Social Security Administration hearings, so long as the advertisement is not false or misleading and otherwise complies with Rules 7.1 and 7.2 of the Utah Rules of Professional Conduct. If an administrative agency, such as the U.S. Social Security Administration, authorizes representation of parties in administrative hearings by nonlawyer representatives, it is not unethical for a lawyer to use nonlawyer paraprofessionals to provide representation of clients in such hearings, so long as the paraprofessional is adequately trained and supervised by the lawyer and the lawyer retains responsibility for the work.
¶ 13 If the lawyer ordinarily provides representation of clients in Social Security Ad­ministration hearings using nonlawyer paraprofessionals, the lawyer’s advertisement is not false or misleading solely because the lawyer’s use of nonlawyer paraprofessionals in providing these services is not disclosed in the advertisement. Rule 1.2 requires that the lawyer discuss with the client the objectives of the representation and the means by which the objectives will be pursued. The lawyer should discuss with the client at the initial stages the lawyer’s intention to use a nonlawyer parapro­fessional as the client’s represen­tative at the hearing. Rule 1.4(b) requires that the lawyer explain the advantages and disadvantages of the representation of the client in the hearing by a nonlawyer para­professional supervised by the lawyer to an extent reasonably necessary to enable the client to make an informed decision regarding who will appear at the hearing as the client’s representative. Under the assumptions set forth in this opinion, the lawyer does not assist the nonlawyer paraprofessional in the unauthorized practice of law under these circumstances.
Footnotes
1.It is not the province of the Committee to decide what is the unauthorized practice of law. This is an issue of law for the courts. In rendering this opinion, we have assumed that it is not the unauthorized practice of law for a lawyer to use non-lawyer paraprofessionals in federal administra­tive hearings as permitted by the federal agency’s applicable rules. See, e.g., Sperry v. State ex rel. Florida Bar, 373 U.S. 379, 385-402 (1963); see also In re: Florida Bar Advisory Opinion, 571 So. 2d 430 (Fla. 1990).
2.Utah Rules of Professional Conduct 7.2(a) (2003).
3.Id., Rule 7.1(a).
4.Id., Rule 7.1, cmt. Also, under the current rules, “A copy or recording of an advertisement or written communication shall be kept for two years after its last dissemination along with a record of when and where it was used.” Id. Rule 7.2(b). We note that this provision does not appear in the current ABA Model Rules of Professional Conduct that resulted from the ABA’s Ethics 2000 project. Although Utah may ultimately adopt this deletion as it considers the new ABA Model Rules, Rule 7.2(b) is still a requirement for attorney advertising in Utah. Also, under current Utah Rule 7.2(d): “Any communication made pursuant to this Rule shall include the name of at least one lawyer respon­sible for its content.” The new ABA Rule 7.2(d) broadens this to “at least one lawyer or law firm.”
5.A number of administrative agencies permit representation of parties in administrative hear­ings by nonlawyers. The analysis in this opinion is equally applicable to hearings before such agencies.
6.“A lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to insure that the person’s conduct is compatible with the professional obligations of the lawyer.” Utah Rules of Professional Conduct 5.3(b) (2003).
7.Id., Rule 5.3, cmt.
8.See generally Utah Ethics Advisory Op. 99-02, at 1-2, 1999 WL 260749, http://www.­utahbar.org/opinions (Utah St. Bar). There, we stated that determination of “adequate supervision” of a nonlawyer assistant requires a case-by-case analysis. At a minimum, the nonlawyer assistants must be appropriately trained and their performance of professional services monitored and evaluated.
9.“Paragraph (b) does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See Rule 5.3.” Rule 5.5, cmt.
10.Under Rule 1.2 provides:
(a) A lawyer shall abide by a client’s decisions concerning the objectives of the representation, subject to paragraphs (b), (c), (d), and shall consult with the client as to the means by which they are to be pursued. . . .
(b) A lawyer may limit the objectives of the representation if the client con­sents after consultation.
Utah Rules of Professional Conduct 1.2 (2003).
11.“A lawyer shall explain a matter to the extent reasonably necessary to enable the client to make informed decisions regarding the representation.” Id. Rule 1.4(b).
12.We understand that engagements to represent claimants at Social Security Administration hearings are commonly performed under a contingency-fee agreement. If the lawyer’s services are to be provided for a contingent fee, the agreement must be in writing. Utah Rules of Professional Conduct 1.5(c) (2003). Also, pursuant to 42 U.S.C. § 406(a)(1), “[t]he Commissioner of Social Security may prescribe rules and regulations governing recognition of agents or other persons, other than attorneys as hereinafter provided, representing claimants . . . .” The written fee agreement provides an excellent opportunity for the lawyer to memorialize the discussion with the client of the use of a nonlawyer paraprofessional as the client’s representative at the administrative hearing.

Ethics Advisory Opinion No. 01-02

(Issued February 21, 2001)
¶ 1 Issue
: Does a lawyer violate the Utah Rules of Professional Conduct if he agrees to discount his fees to a client until a referral fee initially charged to the client by a lawyer-referral service is reimbursed to the client?

¶ 2 Opinion: A lawyer who agrees to discount his fees to a referred client in order to permit the client to be reimbursed for the referral fee that the client originally paid to the referral service makes an indirect payment to the referral service and, therefore, violates the prohibition against payment of referral fees on a fee-per-case basis under Utah Rules of Professional Conduct 7.2(c).
¶ 3 Facts: A Utah lawyer referral service charges a referral fee to participating lawyers. It also charges a referral fee to its customers who are referred to lawyers. In order to make its business more appealing to the general public and businesses, the referral service also asks each participating lawyer to discount by 10% the lawyer’s usual fees to a referred client until the client is credited with an amount equal to the referral fee that the client paid to the referral service. Because not all participating lawyers agree to discount their legal fees, the referral service cannot guarantee to its customers that their referral fees will be reimbursed to them through the proposed payment arrangement.
¶ 4 Analysis: Under Utah Rules of Professional Conduct 7.2(c) (2000), “[a] lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may pay the usual charges of a lawyer referral service or other legal service organization, but only as allowed by the provisions of Rule 1.5(e).” The relevant comment to Rule 7.2(c) further explains that the rule restricts the lawyer’s ability to pay referral fees by specifying that the “lawyer is allowed to pay for advertising permitted by this Rule, but otherwise is not permitted to pay another person for channeling professional work on a fee-per-case basis.”
¶ 5 Thus, a Utah lawyer may pay a fee to an organization that provides referrals so long as that fee is not calculated on a per-referral basis. In addition, if the referral organization consists entirely of lawyers, the payment of the referral fee must comply with the limitations imposed by Rule 1.5(e) on the division of fees between lawyers who are not in the same firm.1Based on the facts submitted to the Committee, we assume that the referral service comprises nonlawyers, rather than lawyers and, therefore, do not address the issue as to lawyer-generated referrals.
¶ 6 Under the proposed arrangement, the payment of a referral fee to the referral service is made initially by the client and later may be reimbursed by the participating lawyer by the lawyer’s discount in an amount equal to the referral fee initially paid by the client to the referral service. That arrangement is by nature a payment made on a fee-per-case basis because it cannot occur until the client hires the lawyer upon the referral provided by the referral service. The fact that the participating lawyer does not pay the referral fee directly to the referral service does not avoid the violation of the prohibition against the payment of referral fees on a fee-per-case basis.
¶ 7 On the other hand, this indirect payment seems to serve as a pretext for avoidance of the prescriptions of Rule 7.2(c). By agreeing to rebate the client’s referral fee out of the client’s bill, the lawyer agrees to pay a referral fee on a fee-per-case basis to the referral service through the acts of a third person, the client. The payment arrangement, therefore, is structured in such a way as to accomplish indirectly what is expressly prohibited by Rule 7.2(c), and it triggers the provisions of Utah Rules of Professional Conduct 8.4(a): “It is professional misconduct for a lawyer to . . . violate or attempt to violate the Rules of Professional Conduct . . . or do so through the acts of another.”
¶ 8 The purpose of the payment arrangement implemented by the referral service is, by the admission of the referral service, “[t]o make the referral business more appealing to the general public and businesses.” The discount offered by the participating lawyer to the client is intended as, and constitutes, a benefit to the referral service. In the different but related context of determining whether a lawyer gave “something of value” to a third party in exchange for a referral, thus violating the provisions Rule 7.2(c) or its equivalent, several state bar associations have concluded that a lawyer who discounts her fees to clients referred by a third party clearly gives something of value to that third party because she creates an incentive for clients to use the third party’s services. The Connecticut Bar, for instance, has determined that the discount offered by a lawyer to participants in a fund raising for a charitable organization was “something of value” because it provided an incentive to the public to participate in the contest, and it did not constitute a referral fee only because the charitable organization did not recommend the lawyer’s services.2Likewise, the New York State Bar has concluded that a payment arrangement under which a client obtains a discount from the lawyer recommended to the client by an accounting firm and under which the same client contemporaneously enters into a separate contingency fee agreement with the referring accounting firm for a fee in an amount approximately equal to the lawyer’s discount is unethical because “it involves compensation by the lawyer to the accounting firm in connection with the referral of the client.”3The California State Bar reached a similar conclusion when it found that a lawyer offering a discount on legal fees for clients to be referred by a third party gave something of value to that third party because it promoted the third party’s practice and, therefore, violated the prohibition against compensating someone for recommending the lawyer’s services.4
¶ 9 Thus, the fee reduction that is offered by a participating lawyer to a client referred by the referral service and advertised by the referral service to promote its business constitutes an indirect form of payment from the lawyer to the referral service. Although a participating lawyer is not required to discount fees to the client, when he agrees to do so, he also agree to pay indirectly a referral fee to the referral service that is calculated on a per-referral basis. Through the provisions of Rule 8.4(a), the payment of that fee violates Rule 7.2(c).
Footnotes
1.This interpretation of Rule 7.2(c), as amended in 1999, is based on two assumptions: first, that the Rule 1.5(e) limitation that was inserted into Rule 7.2(c) in 1999 is intended to apply only if the referral source is a lawyer and is not intended to prohibit lawyers from paying referral fees to non-lawyers; second, that the newly adopted language explaining the prohibition against fee-per-case referral fees contained in the related comment to Rule 7.2(c) is intended to prohibit the payment of a fee-per-case referral fee to a lawyer referral service, but is not intended to prohibit the payment of referral fees authorized by Rule 1.5(e). The Utah Supreme Court Advisory Committee on the Rules of Professional Conduct recently adopted, and will soon publish for comment, some proposed changes to Rule 7.2(c) that the Committee has recommended in order to clarify the application of the Rule consistent with the two assumptions described above.
2.Conn. Ethics Op. 94-7, 1994 WL 780747 (Conn. Bar Ass’n.). See also Mich. Ethics Op. RI-147, 1992 WL 510838 (Mich. Bar Ass’n) (lawyer allowed to discount fees to clients referred by Chamber of Commerce as long as Chamber of Commerce did not advertise discount as incentive for membership in Chamber of Commerce).
3.N.Y. Comm. on Prof. Ethics Op. 727, 2000 WL 567964 (N.Y. St. Bar Ass’n).
4.Cal. Ethics Op. 1983-75, 1983 WL 31676 (Cal. St. Bar Ass’n). See also Iowa Sup. Ct. Bd. of Professional Ethics and Conduct, Op. 96-06 www.iowabar.org/ethics (1996) (lawyer’s participation in group of entities operating a referral service that requires lawyers to pay a referral fee and to discount their fees to referred clients violates provisions of Rule 7.2(c)); Pa. Ethics Op. 93-107, 1993 WL 851217 (Pa. Bar Ass’n) (lawyer violates Rule 7.2(c) when lawyer reduces fees for person who referred clients to lawyer.

Ethics Advisory Opinion No. 99-04

(Approved June 30, 1999)
General Issue:
What are the ethical considerations that govern a lawyer who wishes to conduct legal seminars; provide legal information to groups of retirement-home residents; host open houses; set up information booths at trade shows; participate in Bar-sponsored question-and-answer programs; or make in-person contacts with prospective clients at the request of their friends or relatives?

Summary: This Opinion analyzes and decides a range of related questions that have arisen in connection with lawyers’ marketing and solicitation activities. In general, we find that lawyers may make their services known through a variety of methods that do not involve uninvited, one-on-one approaches, discussions or solicitations. On the other hand, where monetary gain is a significant motivation, lawyers may not generally engage in uninvited, direct in-person communications with prospective clients in order to indicate the lawyer’s availability to accept professional employment.
Issue No. 1: May a lawyer sponsor and advertise a free seminar on legal issues to be presented in a group setting to members of the public and (i) offer literature or videos discussing the legal topic, either with or without fee, to attendees of the seminar, (ii) give a business card to attendees who request one, and (iii) accept employment to provide legal services to an attendee who initiates a request for professional services?
Opinion: Yes. Provided that the invitations do not communicate the lawyer’s availability to accept professional employment, a lawyer may invite members of the public to a law-related seminar with invitations delivered by mail, by telephone or in person. If the invitations communicate the lawyer’s availability to accept professional employment, the invitation may not be in person or telephonic and must comply with Utah Rules of Professional Conduct 7.1, 7.2 and 7.3(b). So long as the lawyer complies with the requirements of Rule 7.3(a) and does not solicit professional employment from attendees of the seminar in person, the lawyer may provide a business card to an attendee of the seminar who requests it and may accept employment to provide legal services to attendees of the seminar who initiate the request for professional services. The lawyer may distribute or offer in person to each attendee literature or videos discussing the legal topic, with or without fee, provided the literature or videos do not communicate the lawyer’s availability to accept professional employment. The lawyer may distribute or offer in person to attendees literature or videos which communicate the lawyer’s availability to accept professional employment only if the request for such materials is initiated by the attendee. The lawyer may make business cards, brochures and other literature communicating the lawyer’s availability to accept professional employment available at a table to those in attendance who voluntarily, without inperson encouragement, choose to pick up the materials.
Issue No. 2: If a lawyer volunteers to appear before a group of residents of a retirement or senior center to answer in a group setting questions they may have concerning legal topics, may the lawyer ethically accept legal engagements offered by residents of the center who attend the group question and answer session?
Opinion: Yes, as long as the lawyer complies with the requirements of Rule 7.3(a) and does not solicit professional employment in person. The lawyer is subject to the same ethical restraints during a group question and answer session as are set forth in this Opinion with respect to law-related seminars.
Issue No. 3: If a lawyer purchases booth space at a trade show, may the lawyer (i) discuss legal topics one on one with persons who voluntarily visit the lawyer’s booth and (ii) accept legal engagements offered by attendees of the trade show who visit the lawyer’s booth and engage in one-on-one discussions with the lawyer?
Opinion: Yes, so long as the lawyer complies with the requirements of Rule 7.3(a) and does not engage in in-person solicitation of professional employment.1The lawyer may display print advertisements at or about the booth that comply with Rules 7.1 and 7.2.
Visits by the public to a lawyer trade-show booth are similar to visits by non-clients to a lawyer’s advertised open house. The lawyer may not communicate the lawyer’s availability to accept professional employment in person, but he may discuss legal topics with the prospective clients. When the request is initiated by the prospective client, the lawyer may privately provide individualized legal advice. The lawyer may not generally distribute business cards, brochures or other literature communicating the lawyer’s availability to accept professional employment in person, but may provide such materials to those prospective clients who initiate a request for such information. The lawyer may make available materials communicating the lawyer’s availability to accept professional employment at a table to those in attendance who voluntarily, without in-person encouragement, choose to pick up the materials. The lawyer may accept professional employment from prospective clients who meet with the lawyer so long as the lawyer does not engage in in-person solicitation in violation of Rule 7.3(a).

Issue No. 4:
May a lawyer volunteer to set up a table in a common area of a retirement or senior center in order to meet one on one to discuss legal topics with residents of the center who voluntarily visit the lawyer’s table, and may the lawyer accept legal engagements proposed by residents of the center who visit the lawyer’s table and voluntarily engage in one-on-one discussions of legal issues with the lawyer?
Opinion: Yes, so long as the lawyer complies with the requirements of Rule 7.3(a) and does not engage in in-person solicitation of professional employment from persons with whom the lawyers has no family or prior professional relationship for pecuniary gain. The lawyer is subject to the same ethical restraints during a discussion-table meeting with a prospective client as are set forth in this Opinion with respect to lawyer open houses and lawyer trade-show booths.

Issue No. 5:
May a lawyer volunteer to provide one-on-one consultations with residents of a retirement or senior center concerning legal topics, initiate one-on-one in-person communications with residents of the center in their rooms or common areas to discuss their legal questions or concerns, and accept legal engagements proposed by such residents who discuss legal topics one on one with the lawyer?
Opinion: No. The lawyer has engaged in direct in-person solicitation of professional employment when the lawyer initiates uninvited one-on-one contact to discuss legal topics with residents of the center.
Issue No. 6: If a lawyer volunteers to answer questions of members of the public participating in a Utah State Bar-sponsored one-on-one question-and-answer session, such as a Bar-sponsored telethon (in-person telephonic contact) or the Bar-sponsored Tuesday Night Bar (face-to-face contact), may the lawyer provide to a member of the public his name and telephone number during the Bar-sponsored communication and accept professional employment for a fee offered by a member of the public during or after the Bar-sponsored communication?
Opinion: No. The Bar’s current policies concerning such Bar-sponsored programs prohibit lawyer volunteers from accepting professional employment resulting from discussions with members of the public during the program, unless the professional employment is accepted on a pro bono basis. If the Bar’s policies concerning such Bar-sponsored programs did not prohibit a lawyer from accepting professional employment on a for-fee basis resulting from the programs, and the lawyer complied with the requirements of Rule 7.3(a) that prohibits in-person solicitation of professional employment of persons the lawyer could, upon a request initiated by the member of the public, provide his address and telephone number and accept professional employment on a for-fee basis during or after the Bar-sponsored communication.
Issue No. 7: If a relative or close friend of a prospective client requests that the lawyer telephone the prospective client to offer to provide legal representation, is it ethical for the lawyer to telephone the prospective client and to offer to provide legal representation?
Opinion: Generally no, unless the relative or friend of the prospective client requesting the lawyer to make the contact is the agent of the prospective client. To satisfy this requirement, a lawyer must make an objective, reasonable good-faith determination that the person is actually the agent of the prospective client. Absent this determination, it is a prohibited in-person solicitation for the lawyer to telephone the prospective client to provide legal representation for pecuniary gain.
Background: The Committee has received several requests regarding the ethics of certain client-development activities generally described as law-related seminars, group question-and-answer sessions on law-related topics, trade-show booths, discussion tables, uninvited one-on-one question-and-answer sessions on law-related topics and participation in Utah State Bar-sponsored legal assistance programs. The Committee has also received a request for an opinion on the ethics of in-person contact of prospective clients referred to the lawyer by the family or close friends of the prospective client. Unless otherwise indicated, the Committee has assumed in the analysis of each of these requests that (i) the prospective client is a person with whom the lawyer has no family or prior professional relationship and (ii) a significant motive for the lawyer’s conduct is pecuniary gain and not to advance any constitutionally protected associational interests.
Issue No. 1 Analysis: Rule 7.3(a) prohibits in-person and telephonic communication directed to a specific recipient with whom the lawyer has no family or prior professional relationship soliciting professional employment when a significant motive for the lawyer’s doing so is pecuniary gain.2
Unlike the rules in some other states, the Utah Rules of Professional Conduct do not define the term “solicit” as this term is used in Rule 7.3(a). We believe that “solicit” in this context means a communication initiated by the lawyer with respect to the lawyer’s availability to provide or to accept professional employment.3The term “solicit” necessarily includes an offer initiated by the lawyer to provide or to accept professional employment and the unrequested advice or recommendation of the lawyer that the lawyer be engaged to provide professional services.4
Rule 7.3 prohibits only solicitations to provide legal services.5An invitation to attend a law-related seminar without any communication of the lawyer’s availability to accept professional employment is not a solicitation of professional employment. Therefore, a lawyer may invite attendance at a law-related seminar sponsored by the lawyer or by others by telephone or by direct in-person communication, so long as the lawyer does not communicate a message or offer concerning the availability of the lawyer to accept professional employment.6If the invitation contains such a message or offer, the invitation must be made by mail and must comply with Rules 7.1, 7.2 and 7.3(b).
A lawyer may appear and make presentations at a law-related seminar provided he does not engage in in-person solicitation prohibited by Rule 7.3(a). Therefore, a lawyer may not communicate the lawyer’s availability to provide professional employment, offer to provide or accept professional employment or recommend that the lawyer or the lawyer’s firm be employed to provide legal services.7 The lawyer may distribute or offer in person to each attendee of the seminar, with or without fee, literature or video tapes concerning the legal issues addressed at the seminar that may state the lawyer’s name, firm affiliation, address and telephone number.8Literature or video tapes offered in person to each attendee may not communicate the lawyer’s availability to provide or accept professional employment.9Therefore, the lawyer’s business card, brochures or other endorsements of the lawyer or the lawyer’s law firm should not be generally distributed in person to attendees of law-related seminars.10If an attendee of a law-related seminar initiates a request to the lawyer to receive literature or video tapes that communicate the lawyer’s availability to provide or to accept professional employment, the lawyer may ethically provide such materials to the attendee. Letters and brochures offering the lawyer’s legal services may be mailed by the lawyer after the seminar to the attendees of the seminar.11
A lawyer may not provide individualized legal advice during the course of a law-related seminar.12By doing so, the lawyer would be providing legal services. In response to questions by attendees, the lawyer must endeavor to respond generally so as to create no impression that the lawyer has accepted professional employment on behalf of an attendee. While the lawyer may not initiate a recommendation of the lawyer’s engagement by any attendee of the seminar, he may recommend, when appropriate, that an attendee of the seminar consult with a lawyer of the attendee’s own choosing.
A lawyer may meet one on one with an attendee of the seminar, when such a contact is initiated by an attendee. In private sessions with attendees, if a request for individualized legal advice is initiated by the attendee, the lawyer may provide individualized legal advice.13The lawyer may accept professional employment offered by an attendee of the seminar, either offered privately at the seminar or after the seminar, provided the lawyer has not initiated the offer by engaging in in-person solicitation in violation of Rule 7.3(a).14
Some state bar associations have placed additional restrictions on lawyer participants at law-related seminars. The Committee chooses not to adopt these additional restrictions.15
Issue No. 2 Analysis: The Committee does not see a meaningful distinction between a group question-and-answer session concerning legal topics and a law-related seminar. For this reason, the Committee believes the analysis of this issue is the same as the analysis of Issue 1, law-related seminars, and that the ethical restraints on the lawyer’s conduct are the same.16
Issue No. 3 Analysis: It is not unethical for a lawyer to purchase booth space at a trade show. So long as advertisements attached to or near the booth space comply with Rules 7.1 and 7.2, it is not unethical for the lawyer to display print advertisements of the lawyer’s availability to accept legal employment. This is equivalent to outdoor advertising authorized by Rule 7.2. What distinguishes booth space at a trade show from outdoor advertising is the presence of the lawyer at the booth to engage in one-on-one oral communications with attendees of the trade show.
Other state bar associations are divided on what activities a lawyer at a trade-show booth may ethically engage in. Some permit the lawyer to initiate in-person offers to provide legal services to anyone who visits the booth and voluntarily engages in communications with the lawyer.17These opinions appear to view the booth as an extension of the lawyer’s office. The presumption is that a lawyer is free to engage in in-person solicitation of those who walk into a lawyer’s office to discuss legal services.
Some bar associations prohibit the lawyer from solicitation of persons with no family or prior professional relationship with the lawyer who visit the booth. This, therefore, prohibits the general in-person distribution from the booth of brochures, business cards and other writings communicating the lawyer’s availability to accept professional employment.18These opinions reason that general in-person distribution of brochures and initiating offers to provide professional services from the trade show booth is not unlike a lawyer standing on a street corner and passing out brochures and offering to provide legal services to each passerby. These opinions are concerned with the potential for undue influence, harassment and fraud that may occasion one-on-one encounters between the lawyer and the public making their way past the lawyer’s booth.
The Committee believes that visits to a lawyer’s trade-show booth should be likened to visits to a lawyer’s office during an advertised open house. Non-clients who attend an advertised lawyer open house do not reasonably anticipate that they will be subjected to in- person solicitation of professional employment.19 For this reason, it is unethical for lawyers to engage in in-person solicitation of such persons.20These occasions afford the lawyer the opportunity to meet prospective clients and for prospective clients to meet the lawyer. The lawyer may discuss legal topics with the attendees and may, when the request is initiated by the prospective client, privately provide individualized legal advice.21
The lawyer may not initiate an offer to provide or to accept professional employment. He is free to distribute in-person business cards, brochures and other self-promoting literature to an attendee of an open house who requests the literature, but may not otherwise distribute literature in person that communicates the lawyer’s availability to accept professional employment to those in attendance.22The lawyer may later mail the brochures and other literature to those who attend the open house. So long as the lawyer does not engage in in-person solicitation in violation of Rule 7.3(a), the lawyer may accept professional employment from attendees of the open house.
The Committee believes that the same analysis applies to trade-show booths. The lawyer may get acquainted with those who visit the booth, may discuss legal topics generally and may, when the request is initiated by the prospective client, privately provide individualized legal advice. The lawyer may not initiate in-person communications about the lawyer’s availability to accept professional employment. The lawyer may not in person distribute business cards, brochures or other literature communicating the lawyer’s availability to accept professional employment unless the person visiting the booth initiates the request for this information. So long as the lawyer does not engage in in-person solicitation in violation of Rule 7.3(a), he is free to accept professional employment offered by those who visit the booth.
Issue No. 4 Analysis: The Committee believes that a table set up by a lawyer at a retirement or senior center for the purpose of meeting with residents of the center who voluntarily visit the lawyer’s table to discuss legal topics is indistinguishable from a lawyer’s open house or a booth set up by a lawyer at a trade show. The analysis of this issue is the same as the analysis of Issue No. 3, and the ethical restraints on the lawyer’s conduct are the same as the restraints on a lawyer’s holding an open house or setting up a trade-show booth.
Issue No. 5 Analysis: The lawyer’s conduct in initiating uninvited communications with residents of the senior center, whether in their rooms or in common areas of the center, is distinguishable from establishing a table in a common area of the senior center. When the lawyer initiates the contact, the resident is subjected to the uninvited presence of the lawyer in a one-on-one encounter. This situation is “fraught with the possibility of undue influence, intimidation and over-reaching.”23The residents of the senior center are subjected to “the private importuning of a trained advocate, in a direct interpersonal encounter” which was wholly uninvited by the resident.24 Because the communications are private and oral and not visible or otherwise open to public scrutiny, it is nearly impossible for the lawyer’s conduct to be regulated. The potential for abuse inherent in this situation justifies a prophylactic prohibition of the acceptance of legal representation offered by the residents of the senior center under these circumstances, unless the representation is pro bono.25
It may be argued that such uninvited one-on-one contact to discuss legal topics of interest to the residents of the senior center is not solicitation unless the lawyer communicates his availability to accept legal employment. It may also be argued that, if the resident initiates a request for individualized legal advice or to engage the lawyer to provide legal services, then the professional employment has not been obtained through solicitation in violation of Rule 7.3(a). The Committee is not persuaded by such arguments. These arguments are similar to the analysis set forth earlier in this Opinion for law-related seminars, group question-and-answer sessions, client open houses and trade-show booths and discussion tables. However, in each of these previously discussed modes of lawyer communication, the prospective clients have invited the communication. While the one-on-one communications at the lawyer open house, lawyer trade-show booth and discussion table are also fraught with the danger of undue influence, intimidation and over reaching, and are also private and not open to public scrutiny, they are at least invited communications. When weighing the rights and benefits of the public in receiving education and direction on legal topics with the potential for lawyer abuse, the Committee finds the balance in favor of permitting one-on-one communications at lawyer open houses, trade-show booths and discussion tables because the communications are invited by the prospective client.
In Shapero v. Kentucky Bar Association, the United States Supreme Court distinguished solicitation by targeted mail from in-person solicitation, stating: “In assessing the potential for over reaching and undue influence, the mode of communication makes all the difference.”26We agree, but further note that uninvited one-on-one communication is fraught with the most danger of abuse. It is this form of communication to attract professional employment that Rule 7.3(a) was intended to prevent. A lawyer may not accept professional employment resulting from such uninvited one-on-one contacts, unless the representation is solicited and provided on a pro bono basis.
Issue No. 6 Analysis: Bar-sponsored telethons and the “Tuesday Night Bar” result in in-person communications by members of the public with lawyers similar to the lawyer open house, trade-show booth and discussion table communications discussed earlier in this Opinion. There is, however, one important distinction. These events are sponsored and advertised to the public by the Bar. Lawyers volunteering to participate in these Bar-sponsored programs are, therefore, subject to the Bar’s rules, regulations and policies regarding the program, in addition to the Utah Rules of Professional Conduct.
Each participant in the Tuesday Night Bar Program receives a policy statement which describes the program as being designed to provide preliminary counseling and general legal information and, if appropriate, referral to a lawyer using the Bar’s Lawyer Referral Service. The policy statement further states: “[The program] is not intended to create an on-going attorney-client relationship between the participants . . . . Attorneys shall not take clients and/or cases from the Program unless the attorney does so on a pro bono basis.” The Bar has also informally indicated it intends to apply a similar policy statement regarding Bar-sponsored telethons.
Therefore, under the current Bar policies, a lawyer volunteer participating in the Bar-sponsored Tuesday Night Bar or a telethon program may not accept legal employment resulting from communications with members of the public during the program, unless the representation is on a pro bono basis. If there were no Bar policy preventing a lawyer participant from accepting professional employment on a for-fee basis from members of the public with whom the lawyer has made contact during a Bar-sponsored program, the lawyer would be governed by the same limitations as discussed previously in this Opinion with respect to communications at lawyer open houses, trade-show booths and discussion tables.
Issue No. 7 Analysis: Rule 7.3(a) states in part: “A lawyer may not solicit in person, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, when a significant motive for the lawyers doing so is the lawyer’s pecuniary gain.” Thus, the lawyer may not generally communicate in person with the prospective client and offer to provide legal services, even if the lawyer has been requested by a friend or close relative of a prospective client to make the communication.27
However, if the person requesting the lawyer to contact the prospective client is the prospective client’s agent, then it would not be unethical for the lawyer to contact the prospective client in person to offer to provide professional services. In that case, the in-person contact has been invited by the prospective client. To satisfy this requirement, a lawyer must make an objective, reasonable good-faith determination that the person is actually the agent of the prospective client.28
In these circumstances, it would be best for the lawyer to advise the person referring the prospective client that the prospective client should contact the lawyer and request the lawyer’s professional services. Otherwise, the lawyer runs the risk that the prospective client’s friend or family member is not authorized by the prospective client to request the lawyer’s direct in-person communication with the prospective client.
Footnotes
1.We assume in this Opinion that the various persons who may be in attendance are not persons “with whom the lawyer has [a] family or prior professional relationship” and that any solicitation would be significantly motivated by “the lawyer’s pecuniary gain.” Otherwise, the lawyer is not constrained by the provisions of Rule 7.3, which forms the foundation of our analysis.
2.In Opinion No. 127, the Committee discussed Rule 7.3(a) and the constitutional limitations on the rule. Utah Ethics Advisory Op. 127, 1994 WL 579847 (Utah St. Bar).
3.See California Rules of Professional Conduct, Rule 1400(B)(1) (“solicitation” is any communication “concerning the availability for professional employment of a member or law firm in which a significant motive is pecuniary gain”).
4.See ABA Model Code of Professional Responsibility, DR2-104(A).
5.Utah Ethics Advisory Op. 97-03, at 2, 1997 WL 223849 (Utah State Bar).
6.Los Angeles Co. Bar Assoc., Formal Op. 494, ABA/BNA Lawyer’s Manual on Professional Conduct 1101:1702 (Oct. 19, 1998).
7.Some state bar associations have allowed lawyers to make generalized statements at law-related seminars regarding their availability to accept professional employment. See, e.g., Ohio State Bar Assoc., Op. 94-13, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:6862 (Dec. 2, 1994); Ariz. State Bar Assoc., Op. 87-23, ABA/BNA Lawyer’s Manual on Professional Conduct 901:1408 (Oct. 26, 1987). Arizona allows lawyer presenters at law-related seminars to offer to provide legal services with or without fee, if no pressure or coercion is exercised upon attendees at the seminar. We do not agree with these opinions. We believe such conduct constitutes in-person solicitation prohibited by Rule 7.3(a).
8.Ill. State Bar Assoc., Op. 96-01, 1996 WL 466449.
9.Mass. State Bar Assoc., Op. 86-3, ABA/BNA Lawyer’s Manual on Professional Conduct 901:4601 (Nov. 25, 1996); Los Angeles Co. Bar Assoc., Formal Op. 494.
10.The Committee does not believe that Rule 7.3(a) precludes lawyer sponsors or presenters at law-related seminars from leaving business cards, brochures or other literature communicating the lawyer’s availability to accept professional employment at tables where these materials may be picked up by any attendee choosing to do so. However, the lawyer may not in any way promote or encourage attendees in person to pick up such written materials.
11.S.C. State Bar Assoc., Op. 97-05, ABA/BNA Lawyer’s Manual on Professional Conduct 1101:7904 (April 1997).
12.Ohio State Bar Assoc., Op. 94-13, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:6862 (Dec. 2, 1994); Ala. State Bar Assoc., Op. 87-119, ABA/BNA Lawyer’s Manual on Professional Conduct 901-1032 (Sept. 29, 1987); Penn. State Bar Assoc., Op. 93-42A, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:7326 (June 2, 1993).
13.R.I. State Bar Assoc., Op. 94-39, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:7834 (June 22, 1994); Penn. State Bar Assoc., Op. 93-42A. By providing individualized legal advice, the lawyer has created an attorney-client relationship and must comply with the Rules of Professional Conduct, including the conflict-of-interest Rules 1.7, 1.9 and 1.10, and Rule 1.6, regarding client confidences.
14.Wis. State Bar Assoc., Op. E-94-4, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:9104 (Nov. 18, 1994); Ohio State Bar Assoc., Op. 94-13, ABA/BNA Lawyer’s Manual on Professional Conduct 1001:6862 (Dec. 2, 1994); Miss. State Bar Assoc., Op. 156, ABA/BNA Lawyer’s Manual on Professional Conduct 901:5108 (Dec. 2, 1988); Penn. State Bar Assoc., Op. 89-32, ABA/BNA Lawyer’s Manual on Professional Conduct 901:7318 (undated).
15.Some state bar associations require that lawyer participants be competent in the area of law addressed at the seminar. Tex. State Bar Assoc., Op. 489, 57 Tex. B.J. 372 (1994). Although lawyers are encouraged not to make presentations in areas of the law in which they are not competent, a law-related seminar is not the provision of legal services and is therefore not subject to Rule 1.1. Some state bar associations require that the seminar be educational, not promotional. Ind. State Bar Assoc., Op. 10 of 1986, ABA/BNA Lawyer’s Manual on Professional Conduct 901:3303 (undated); Tex. State Bar Assoc., Op. 489. To the extent this limitation is intended to be more restrictive than a prohibition on in-person solicitation, it is not required by the Rules and is constitutionally suspect. See Florida Bar v. Went for It, Inc., 515 U.S. 618 (1995); Edenfield v. Fane, 507 U.S. 761 (1993). A requirement in some states is that the sponsorship of the seminar be disclosed. To the extent that a failure to disclose the sponsorship of the seminar may be misleading, a lawyer may be required to disclose this fact to comply with Rule 7.1. However, Rule 7.1 applies only to the advertisement or promotion of a law-related seminar which communicates the lawyer’s availability to accept professional employment.
16.See R.I. State Bar Assoc., Op. 96-21, ABA/BNA Manual of Professional Conduct 1101:7804 (Sept. 12, 1996) (lawyer may telephone administrators of senior centers to offer a lecture series targeted specifically for senior citizens).
17.See, e.g., Nassau Co. [N.Y.] Bar Assoc., Op. 90-7, ABA/BNA Lawyer’s Manual on Professional Conduct 901:6274 (Mar. 14, 1990) (authorizing lawyer to offer legal services from a booth at a shopping center so long as lawyer complies with advertising rules in advertising minimum fees for services and protects against disclosure of client confidences).
18.Penn. State Bar Assoc., Op. 88-214, ABA/BNA Lawyer’s Manual on Professional Conduct 901:7316 (undated) (distribution of firm brochure and contract samples from trade show booth is in-person solicitation); Kan. State Bar Assoc., Op. 98-4, ABA/BNA Lawyer’s Manual on Professional Conduct 1101:3804 (April 2, 1998) (passing out firm brochures at trade show to those who pass by the trade show booth is in-person solicitation).
19.This Opinion assumes that the invitation to a lawyer’s open house does not specifically invite the public to attend for the purpose of being solicited to provide professional employment to the lawyer. The Committee believes that non-clients who attend an open house in response to an invitation that states that the non-clients will be solicited have, in turn, invited the in-person solicitation. It would, therefore, not be unethical for a lawyer to make an in-person solicitation to such a person.
20.N.C. State Bar Assoc., Op. 146, 1992 WL 753128 (Jan. 15, 1993); Ore. State Bar Assoc., Op. 1991-35, 1991 WL 279176 (July, 1991); see also R.I. State Bar Assoc., Op. 89-14, ABA/BNA Lawyer’s Manual on Professional Conduct 901:7805 (July 20, 1989) (lawyer may attend social gatherings to meet prospective clients, but may not engage in in-person solicitation).
21.When providing individualized legal advice, the lawyer must comply with all Rules of Professional Conduct, including the conflict-of-interest Rules 1.7, 1.9 and 1.10 and Rule 1.6 concerning client confidences.
22.The lawyer may make business cards, brochures and other literature communicating the lawyer’s availability to accept professional employment available at a table to those in attendance who voluntarily, without in-person encouragement, choose to pick up the materials.
23.Rule 7.3 cmt.
24.Id.
25.Ohralik v. Ohio State Bar, 436 U.S. 447 (1978) (prophylactic rule against in-person solicitation does not violate the rights of free expression afforded by the First and Fourteenth Amendments of the United States Constitution even in the absence of a showing of any specific harm to the prospective clients). Accord, Shapero v. Kentucky Bar Assoc., 486 U.S. 466 (1988). If the representations are accepted on a pro bono basis, then Rule 7.3(a) would not be applicable. The primary motive of the lawyer would not be pecuniary gain.
26.486 U.S. 466, 475 (1988)
27.Norris v. Alabama State Bar, 582 So. 2d 1034 (Ala. 1991) (lawyer suspended from practice for two years after delivering to a funeral home a funeral wreath and a letter addressed to the widow offering assistance after having received an anonymous telephone call from someone purporting to be a friend of the widow stating that she required legal services and did not have sufficient funds for a funeral wreath); Spence, Payne, Masington & Grossman, P.A. v. Gerson, 483 So. 2d 775 (Fla. App. 1986) (unethical in-person solicitation for a lawyer to send an investigator to obtain a retainer agreement from a widow after receiving a telephone call from a client of the lawyer and a close friend of the widow requesting that the lawyer offer to provide professional services to the widow).
28.A contrary opinion may be found in the Spence, Payne case.

Ethics Advisory Opinion No. 97-06

(Approved May 30, 1997)
Issue:
Under the Utah Rules of Professional Conduct, what are the ethical limitations that govern attorneys’ acceptance of clients’ credit cards to pay fees and costs?

Opinion: Generally, attorneys may accept payment for fees and costs by credit card in the same way that other merchants and service-providers do. This general conclusion is, in part, in conflict with Utah Ethics Advisory Opinion No. 21, which is accordingly overruled.
Background: In 1975, the Utah Ethics Advisory Opinion Committee issued Opinion No. 21, which placed significant restraints on the acceptance of credit cards by attorneys in payment of fees and cost. That opinion was issued under the then-effective Code of Professional Responsibility, which, among other differences, is at variance with the current Utah Rules of Professional Conduct in the area of attorney advertising. To the extent the world of communicating about attorneys’ services has changed, this Committee has been asked to revisit the issue of attorneys’ acceptance of credit cards under today’s Rules.
The following specific questions have been asked:
1. May an attorney accept cash or a check from a client to be held against unearned fees or costs when the attorney knows that the client obtained the funds through the use of a credit card?
2. May an attorney enter into a retainer agreement with a client under which the client gives the attorney a credit card number and authorizes the attorney to charge the client’s card when fees are earned or costs incurred?
3. May an attorney suggest to a client that the client use a credit card to pay attorneys’ fees or costs?
4. May an attorney place a notice on bills sent to clients stating that the attorney accepts credit card payments?
5. In accepting credit-card payments, must an attorney enter into a bank charge card-attorney agreement similar to the agreement attached to Ethics Advisory Opinion No. 21, issued February 19, 1975?
Analysis: In 1969 the American Bar Association issued Informal Opinion 1120 which stated that “it is unprofessional for an attorney to subscribe to credit card plans.” That view was reaffirmed in February 1971 by ABA Informal Opinion 1176. However, by 1974 in Formal Opinion 338, the ABA had revisited the issue of attorneys’ accepting credit cards for fee payments in light of the adoption of the ABA Model Code of Professional Responsibility, which had replaced the ABA Canons of Ethics. The ABA reversed course and concluded in Opinion No. 338 that “the Code has overruled Informal Opinion 1176 and that the use of credit cards for the payment of legal expenses and services is permitted under the Code.” However, the opinion went on to list six “considerations” to which a credit card plan was required to conform:
1. All publicity and advertising relating to a credit card plan shall be subject to the prior approval in writing of the state or local bar committee having jurisdiction of the professional ethics of the attorneys involved.
2. No directory of any kind shall be printed or published of the names of individual attorney members who subscribe to the credit card plan.
3. No promotional materials of any kind will be supplied by the credit card company to a participating attorney except possibly a small insignia to be tactfully displayed in the attorney’s office indicating his participation in the use of the credit card.
4. An attorney shall not encourage participation in the plan, but his position must be that he accepts the plan for the convenience for clients who desire it; and the attorney may not because of his participation increase his fee for legal services rendered the client.
5. Charges made by attorneys to clients pursuant to a credit card plan shall be only for services actually rendered or cash actually paid on behalf of a client.
6. In participating in a credit card program the attorney shall scrupulously observe his obligation to preserve the confidences and secrets of his client.
ABA Opinion 338 does not cite any provision of the ABA Model Code of Professional Responsibility as support for the “considerations,” nor does the opinion cite any provision of the Code as support for any conclusion in the opinion.
The year after Opinion 338 was issued, the Utah State Bar approved Opinion No. 21, which adopted the conclusion of ABA Formal Opinion 338: “We concur with Formal Opinion 338, and accordingly hold that if those requirements [the "six considerations"] are met fully, the use of credit cards for the payment of attorney’s services and charges is proper for members of the Utah State Bar.” Also appended to Opinion No. 21 was a suggested form of “Bank Charge Card-Attorney Agreement.” As with ABA Opinion 338, Utah Ethics Opinion 21 does not cite any provision of the Utah Code of Professional Responsibility (the predecessor to today’s Utah Rules of Professional Conduct) to support the requirements.
Rule 1.5 of the Utah Rules of Professional Conduct deals with fees. The rule does not prohibit credit cards. Just as Opinion No. 21 concluded that “the use of credit cards for payment of legal expenses and services is permitted,” Rule 1.5 of the Rules of Professional Conduct currently permits the use of credit cards for payment of legal expenses and services.
The previous opinions of the ABA and the Utah State Bar were written under the prior Canons of Ethics or the Code of Professional Responsibility. Attorney advertising was much more limited in those days under the Code of Professional Responsibility than it is today under the Rules of Professional Conduct. Since then, court decisions,1combined with the adoption of the Rules of Professional Responsibility, have granted attorneys greater freedom in the area of advertising. In light of these changes, the following discusses, in turn, each of the six “considerations” listed in Opinion 21.
1. Current Rule 7.2 deals with advertising by attorneys. It does not require “prior approval in writing of the state or local bar committee having jurisdiction of the professional ethics of the attorneys involved.”
2. Rule 7.2 does not prohibit attorneys from being included in a directory of firms and businesses that accept credit cards. This would not be substantially different from an attorney’s being included in (or actually advertising in) a directory of firms and businesses that have a telephone and accept telephone calls.
3. Rule 7.2 does not limit an attorney to a “small insignia to be tactfully displayed in the attorney’s office indicating his participation in the use of the credit card.”
4. Nothing in the Rules of Professional Conduct explicitly requires an attorney to discourage the use of credit card in payment of fees or services. However, Rule 2.1, Advisor, provides:
In representing a client, an attorney shall exercise independent professional judgment and render candid advice. In rendering advice, an attorney may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.
Therefore, economic factors of a client’s situation could require an attorney to advise that a client not use a credit card to pay the attorney’s fees and services.
In addition, there is no ethical principle that would prohibit the attorney from passing along any additional costs incurred in accepting credit-card payment. As with most retail merchants, the attorney or law firm might typically forego this charge. But, if a credit-card company charges the attorney, for example, 3% of the gross billings to provide its services, these are legitimate costs that the attorney may pass on to clients. (This could be a direct charge or could, for example, take the form of a discount to cash-paying clients of an equivalent percentage.
5. The Rules of Professional Conduct do not require that the attorney restrict credit card acceptance to those instances in which the attorney is billing only for services actually rendered or cash actually paid on behalf of a client. However, if an attorney accepts credit-card payment as an advance of fees or reimbursements, then the attorney must comply with Rule 1.15, Safekeeping of Property, and with Rule 1.16(d), which deals with refunding any advance payment of fee which has not been earned, upon termination of representation.
6. An attorney does have a duty to preserve confidences in accordance with Rule 1.6, which forbids disclosure of “information relating to representation of a client . . . , unless the client consents after disclosure.” The rule has been read as being broad enough to protect the client’s identity.2It is possible that the acceptance of a credit card will reveal to the credit card company that the client has paid an attorney. Therefore, in an instance where the attorney is aware that the client wishes the fact of his being represented by an attorney to remain confidential, the attorney should alert the client who offers to pay by credit card of the disclosure of his name to the credit-card company to insure that the client consents.
With this discussion as a foundation, we now address directly the questions raised in this request:
1. An attorney may accept cash or a check from a client to be held against unearned fees or costs when the attorney knows that the client obtained the funds through the use of a credit card.
2. An attorney may enter into a retainer agreement with a client under which the client gives the attorney a credit card number and authorizes the attorney to charge the client’s card when fees are earned or costs incurred.
3. An attorney may suggest that a client use a credit card to pay attorneys’ fees or costs.
4. An attorney may place a notice on bills sent to clients stating that the attorney accepts credit card payments.
5. In accepting credit-card payments, an attorney has no obligation to enter into a bank charge card-attorney agreement similar to the agreement attached to Ethics Advisory Opinion No. 21. Indeed, we see no reason that the relationship between the attorney and the bank or credit-card company would be significantly different from that between a card company or bank and other providers of professional services.
For the reasons discussed above, this opinion overrules Utah Ethics Advisory Opinion No. 21.
Footnotes
1.See, e.g., Peel v. Attorney Registration & Disciplinary Comm’n, 496 U.S. 91 (1990); Shapero v. Kentucky Bar Ass’n, 486 U.S. 466 (1988); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985); In re R.M.J., 455 U.S. 191 (1982); Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
2.Utah Ethics Advisory Committee Op. No. 97-02, 1997 WL 45141 (Utah St. Bar); see Przypyszny, Public Assault on the Attorney-Client Privilege: Ramifications of Baltes v. Doe, 3 Geo. J. Legal Ethics 351 (1989) (discussing a Florida case where lawyers refused to disclose the identity of a client that had allegedly consulted them concerning a hit-and-run.) But cf. In re Subpoena to Testify Before the Grand Jury (Alexiou v. U.S.), 39 F.3d 973 (9th Cir. 1994) (holding that a lawyer had to reveal the identity of the client in a counterfeiting case).
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