Ethics Advisory Opinion 15-05

Utah State Bar

Ethics Advisory Opinion Committee
Opinion Number 15-05
Issued September 30, 2015

ISSUE

  1. May an attorney pay an internet service company a nominal fee to bid on potential legal work? May an attorney seek clients through an internet business that provides the attorney with limited client information in order to permit the attorney to bid to provide the needed legal services?

OPINION

  1. Payment of a nominal fee to the internet forum service provider described herein, thereby enabling the attorney to offer a bid  for legal services to a potential client, does not violate: (a) Rule 7.1, Communications concerning a Lawyer’s Services; (b) Rule 7.2, Advertising, or (c) Rule 7.3, Direct Contact with Prospective Clients.  Using such an internet business to seek new clients does not violate Rule 1.18 or other rules of professional conduct provided the attorney does not undertake representation for which he has a conflict of interest and the attorney protects the confidentiality of the information received from the prospective client.

BACKGROUND

  1. A new internet service provider website has emerged for Utah business market consumers, including potential clients who need and/or seek legal services.  The website is an internet forum designed to help all consumers, obtain bids or quotes on various professional services, including legal services, in the geographic area where the potential consumer or client lives or where the potential services are needed.  Professionals, including attorneys, may create a profile on the service website (free of charge both to the consumer and to the professional). These professionals may respond in writing to consumer requests for bids or quotes on proposed services.  Consumers, including potential legal clients, are allowed to review the professionals/potential attorneys’ submissions, such as attorney biographies, other client analysis of such attorney services, and attorney case summaries.  The consumer/potential client may then leave comments or recommendations on the website for separate consumer access.
  2. This internet forum service is akin to the popular Angie’s List website, www.angieslist.com, which also allows consumers to find professional services the consumer either wants or requires in an identified geographic area.  Yet a critical difference between Angie’s List and the internet forum service provider described in this Opinion is that the Angie’s List service charges consumers to become Angie’s List “members” in order to take advantage of Angie’s List services.   In contrast, the internet service described in this Opinion is available cost-free to consumers.  Instead, the internet service charges the professionals, including attorneys, for this internet service when the professionals submit bids to the consumer with respect to the consumer’s requested service.  In order for an attorney to submit a bid to the potential client for requested legal services, the attorney must pay a nominal fee of approximately $3.00 – $5.00 per bid to the internet service provider.  The attorney must pay this fee for each bid, regardless of whether the bid actually results in any work for the consumer/client.
  3. Any Utah lawyer can register on the internet forum service provider described herein and submit a resume and/or listing of attorney qualifications for designated legal services. The internet service confirms that the Utah State Bar has in fact licensed the bidding attorney.  The attorney, who has registered with the internet service, selects a category of requests he/she would like to receive, such as tax litigation, contract law, criminal law, etc.  The attorney also sets a travel geographic area to specify the maximum distance the professional would limit his/her services.
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Ethics Advisory Opinion 14-04

Utah State Bar
Ethics Advisory Opinion Committee
Revised Opinion Number 14-04 (see Dissent)
Issued November 12, 2014

ISSUE

1.         What are the ethical limits to participating in attorney rating systems, especially those that identify “the Best Lawyer” or “Super Lawyer”?

OPINION

2.         Rule 7.1 of the Utah Rules of Professional Conduct (the “URPC”) prohibits false or misleading communications concerning a lawyer or a lawyer’s services. An unsubstantiated comparison of lawyers is false or misleading if it would lead a reasonable person to conclude that the comparison can be substantiated. Advertisement of a rating, or of inclusion in a ranking list as being “super” or “best” or the like, by a comparing organization is permissible where the comparing organization has made an appropriate inquiry into the lawyer’s fitness, the lawyer does not pay to receive the rating itself (although she may pay for an investigation in accordance with Rule 7.2), the comparing organization’s methodology or standard used to determine the rating or ranking is fully disclosed and explained and conveniently available to the public, and the communication disclaims the approval of the Utah Supreme Court and/or the Utah State Bar. The factual basis for the comparison of the rated or listed lawyer’s services to the services of other lawyers must be verifiable in order to pass muster under Rule 7.1. Any advertisement must state that the lawyer was included in a “super” or other such list or ranking rather than describe the lawyer as being a “super lawyer” or the “best lawyer.”  The statements that a lawyer is “super” or the “best” cannot be factually substantiated and are inherently misleading.

3.         Rule 7.2 of the Utah Rules of Professional Conduct prohibits giving “anything of value to a person for recommending the lawyer’s services; except that a lawyer may: . . . pay the reasonable costs of advertisements or communications permitted by this Rule. . . .” Rule 7.2(b)(1). A lawyer who pays an entity to list her as the “best lawyer” in an area or to otherwise compare her favorably to other lawyers violates Rule 7.2 because she is giving something of value to another to recommend the lawyer’s services.  She is not paying the reasonable costs of advertising. Similarly, trading votes with another in a survey to determine the “best lawyer” is giving something of value for the other person to recommend the lawyer’s services and violates Rule 7.2. “[A]nything of value” would also include monies paid to a public figure or celebrity to recommend a lawyer. It is permissible for a lawyer to pay a fee to a comparing organization to conduct an investigation into the lawyer’s fitness, but the outcome of the investigation must be independent of the fee.

BACKGROUND

4.         Certain websites, advertisers and companies offer services in which they list lawyers as the “best” in a particular locale, practice area, city, etc. Sometimes these entities determine who they will list as the “best” simply by including whoever signs up (and pays them) first. Other times companies will run on-line voting contests to determine which lawyers, restaurants, and businesses are the “best” in the area based solely on the number of votes cast, a system that can be easily manipulated by lawyers with large staffs or multiple email addresses. Other entities purport to have more scientific or valid methods of identifying outstanding lawyers, in which they investigate each lawyer’s fitness before deciding whether to rate the lawyer favorably. Still other entities investigate and approve of law firms or lawyers who have good business practices (e.g., have current business licenses and Utah State Bar licenses, have not been publicly disciplined, etc.), separate and apart from the lawyers’ legal experience, skill, and expertise, or lack thereof, which they do not investigate or evaluate. The Committee has been asked to opine as to when these arrangements violate the Rules of Professional Conduct.
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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:

  1. Referring Attorney will generate the cases by placing advertising and/or arranging for medical testing and diagnosis of prospective clients and would be entitled to reimbursement from the Receiving Attorney for the costs of doing so.
  2. In return for the Receiving Attorney’s agreement to pay those expenses, the Referring Attorney would be required to exclusively refer to the Receiving Attorney all clients having such Claims who contact the Referring Attorney.  The Referring Attorney would not be allowed to represent such clients himself or to refer such clients to any other attorney.
  3. The Referring Attorney will place advertising, accept incoming calls from potential clients, obtain medical records from potential clients, arrange for medical testing, and perform certain other related tasks, before turning the clients over to Receiving Attorney for further action.
  4. The Receiving Attorney will decide in his sole discretion the venue, jurisdiction, timing, counts, and content of complaints or petitions, joinder of plaintiffs and/or defendants, and any other strategic issues relating to the Claims.
  5. The Referring Attorney will ask clients to sign new fee agreements directly with the Receiving Attorney, identifying the Receiving Attorney as the clients’ attorney, will inform the clients of the division of fees between the two attorneys, and will inform the clients of any other matters deemed by either attorney to be required by the Rules of Professional Conduct.
  6. The Referring Attorney will not be required to perform any services except those specified in the Agreement or required by the Utah Rules or by any other ethical rules governing the Claims or any resulting cases.
  7. The Receiving Attorney will pay the Referring Attorney specified portions of the fees recovered by the Receiving Attorney for the clients on their Claims.

 ANALYSIS

 

4.         The fee sharing agreement between the two attorneys is governed by Rule 1.5, which provides that there may be a division of fees between lawyers in different firms, but on the following condition:

(e)(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;

(e)(2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and

(e)(3) the total fee is reasonable.
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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)?

OPINION

3.         The Agreement, which requires payment to the non-lawyer Marketer to be based on a percentage of the fees paid to the Law Firm by the clients referred to the Law Firm by the Marketer, violates Rule 7.2(b) and Rule 5.4 of the Rules of Professional Conduct.

4.         The question of whether it should be apparent to the Attorney retained by Marketer to enforce the Agreement, that the Agreement violates Rule 7.2(b) and/or Rule 5.4 of the Rules of Professional Conduct, in a manner that triggers a duty to inform the appropriate professional authority under Rule 8.3(a), is a fact specific inquiry undertaken by the lawyer presented with a Rule 8.3(a) question.  The Committee expresses no opinion as to whether these specific facts do in fact trigger any obligation of the Attorney under Rule 8.3(a).

FACTS

5.         A Marketer has an agreement with a Law Firm to conduct telephone marketing to solicit and refer clients to the Law Firm.  Marketer is paid by Law Firm, but Marketer receives payment which matches a percentage of the fees paid to the Law Firm by the clients who retain the Law Firm and were referred to the Law Firm by the Marketer.  If the Law Firm is not paid in full by the clients referred by the Marketer, Law Firm’s payment to Marketer is reduced.  An agency of another State requires the Law Firm to refund a substantial portion of fees paid to the Law Firm by residents of that State.  Law Firms payments to the Marketer were reduced correspondingly.

6.         Marketer then retains an Attorney to enforce payments – without reductions – under the agreement between the Law Firm and the Marketer.

ANALYSIS

7.         Rule 7.2(b) states that:  “A lawyer shall not give anything of value to a person for recommending the lawyer’s services[.]”  The comments to Rule 7.2 indicate that:  “Lawyers are not permitted to pay others for channeling professional work.”  [Comment 5].  Here, the arrangement between a Law Firm and Marketer violates the plain language of Rule 7.2(b) and it is not readily apparent from the facts of this matter that any exception to the plain language of Rule 7.2(b) is applicable.

8.         The comments to Rule 7.2 recognize the limited exceptions to this prohibition and mimic the language of Rule 7.2(b)(2) in indicating that:  “A lawyer may pay the usual charges of a legal service plan or a lawyer referral service. . . . A lawyer referral service . . . is an organization that holds itself out to the public to provide referrals to lawyers with appropriate experience in the subject matter of the representation.”  [Comment 6].  “At a minimum, Rule 7.2(b) 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.”  [Opinion 07-01].  Here, there is no indication that the Marketer is in fact a “lawyer referral service.”[1]
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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:

(i)  The relevant Rules of Professional Conduct (the “Rules”) expressly prohibit an attorney from giving anything of value to a person for a legal referral, and includes giving anything of value indirectly.  Any compensation for a referral violates the Rules.  Any agreement for reciprocal referrals violates the Utah Rules.

(ii)  The relevant Rules do not expressly prohibit an attorney from engaging in joint advertising with a non-lawyer.  However, due to the multitude of possible arrangements between the participants in any such joint advertising, the Committee does not and cannot give a general opinion endorsing the use of joint advertising or referrals between an attorney and a non-lawyer because of the high probability of violating other Rules, including the prohibition of giving anything of value to a non-lawyer for a referral.

(iii)   The relevant Rules do not specifically prohibit an attorney from acquiring an ownership or equity interest in, or make a loan to, a business that is not a client with the expectation of receiving referrals from the business.   The Rules specifically prohibit an attorney from entering into a business transaction with a client or knowingly acquiring an ownership, possessory, security or other pecuniary interest adverse to a client, without complying with specific conditions.  In any event, because of the multitude of possible arrangements between the participants in any such business arrangements, the Committee does not and cannot give a general opinion endorsing an attorney acquiring an ownership or equity interest in, or making a loan to, a business, with the expectation of receiving referrals from the business.

Background 

3.   The requesting lawyer explains that each question represents a practice that he believes is followed by lawyers in his practice area.  Those questions, as combined by the Committee, which are stated in more detail hereafter, set forth the extent of the background relied upon by the Committee to provide the opinions and views expressed herein.

Analysis 

4.   Issue No. 1:  The relevant Rules expressly prohibit an attorney from giving anything of value to a person for a legal referral, and includes giving anything of value indirectly.  Rule 7.2(b) states that a “lawyer shall not give anything of value to a person for recommending the lawyer’s services.”  The comments to Rule 7.2 reinforce this, stating that, subject to the exceptions discussed below, “[l]awyers are not permitted to pay others for channeling professional work.”  Utah R. Prof’l Conduct 7.2, comment 5.

5.   This committee has not previously defined the scope of the “thing of value” element.  Other jurisdictions, however, have generally interpreted it broadly.  A Connecticut judicial decision held that “it is improper for an attorney to pay non-lawyer employees a $50 bonus for referring cases to the firm.”  Rubenstein v. Statewide Grievance Comm., 2003 WL 21499265 (Conn. Super. Ct. 2003).  Similarly, a Pennsylvania ethics opinion concluded that a lawyer may not give “gift certificates” in exchange for referrals, because gift certificates are a thing of value.  Pa. Eth. Op. 2005-81.
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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. (more…)

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 (more…)

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. (more…)

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? (more…)

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. (more…)