State Bar of Arizona Ethics Opinions

02-08: Advertising; Solicitation [Overrules Ariz. Op. 91-04]
9/2002

A lawyer may ethically sponsor a booth at a business exposition and engage in face-to-face contacts with visitors to the exposition, so long as the contact is initiated by the visitor, not the lawyer, in an atmosphere free of coercion and deception, and so long as there is no reason to believe that visitors to the exposition will be characterized by any particular vulnerability. [ER 7.3] [Overrules Ariz. Op. 91-04]

FACTS[1]

The inquiring law firm is interested in sponsoring a firm booth at a business exposition or trade show where firm brochures and information would be available.  Presumably, the booth would be staffed by lawyers from the firm.

QUESTION PRESENTED

The inquiring attorney questioned whether ER 7.3(a) bars lawyers from sponsoring booths at business expositions or trade shows as indicated in Ariz. Op. 91-04.  If lawyers are allowed to engage in such activities, what ethical limits apply?

RELEVANT ETHICAL RULES

ER 1.6.            Confidentiality of Information

(a)        A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c) and (d) or ER 3.3(a)(2).

(b)        A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.

(c)        A lawyer may reveal the intention of his client to commit a crime and the information necessary to prevent the crime.

(d)        A lawyer may reveal such information to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceedings concerning the lawyer's representation of the client.

ER 1.7.            Conflict of Interest:  General Rule

(a)        A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

(1)            the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

(2)            each client consents after consultation. 

(b)        A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1)            the lawyer reasonably believes the representation will not be adversely affected; and

(2)            the client consents after consultation.  When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

ER 7.1.            Communications and Advertising Concerning a Lawyer's Services

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

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

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

(3)            compares the lawyer's services with any other lawyers' services, unless the comparison can be factually substantiated;

(4)            is a factual statement which cannot be factually substantiated.

(b)        All communications and advertising concerning a lawyer's services shall be predominantly informational.  As used in this rule, "predominantly informational" shall mean that, in both quantity and quality, the communication of factual information rationally related to the need for and selection of an attorney predominates.

* * * *

ER 7.2.            Legal Service Information

(a)        Each lawyer or law firm that advertises (including by written solicitation) his, her or its availability to provide legal services shall have a factual statement detailing the background, training and experience of each lawyer or law firm available for delivery upon request to any potential client in a form to be prescribed by the state bar and approved by the court.

(b)        If the lawyer or law firm claims expertise beyond that possessed by competent and experienced lawyers in general practice in the representation of clients in particular matters or publicly designated or limits the lawyer's or law firm's practice to particular types of cases or clients, the written information shall comply with ER 7.4.

(c)            Whenever a potential client requests information regarding a lawyer or law firm for the purpose of making a decision regarding employment of the lawyer or law firm:

(1)            the lawyer or law firm shall promptly furnish (by mail if requested) the written information described in paragraph (a) and (b).

(2)            the lawyer or law firm may furnish such additional factual information regarding the lawyer or law firm deemed valuable to assist the client.

(d)        A copy of all information furnished to clients by reason of this rule shall be retained by the lawyer or law firm for a period of three (3) years after last regular use of the information.

(e)        Upon reasonable request by the state bar, a lawyer shall promptly provide proof that any statement or claim made in any advertisement or written communication, as well as the information furnished to a prospective client as authorized by these rules, is in compliance with paragraph (a) and (b) above.

ER 7.3.            Direct Contact with Prospective Clients

(a)        A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship in person or by telephone, when a motive for the lawyer's doing so is the lawyer's pecuniary gain.

* * * *

RELEVANT ARIZONA ETHICS OPINION

Ariz. Op. 91-04

OPINION

Ethical Rule 7.3 entitled "Direct Contact with Prospective Clients," reads in relevant part:

(a) A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship in person or by telephone, when a motive for the lawyer's doing so is the lawyer's pecuniary gain.

In Ariz. Op. 87-23, the Arizona Committee on the Rules of Professional Conduct ("the Ethics Committee") made the following statement in the context of a lawyer's participation in educational seminars:  "The Committee interprets ER 7.3's ban on solicitation as applying to a personal contact directly between an attorney and a specific potential client with whom the attorney has had no prior relationship, where the contact is initiated by the attorney for pecuniary gain."  Id. at p. 5 (emphasis added).

No ethical rule expressly addresses the issue of lawyers sponsoring information booths at business trade shows.

However, in Ariz. Op. 91-04 (January 15, 1991), the Ethics Committee interpreted ER 7.3(a) to prohibit a lawyer from sponsoring a booth at a "business exposition," even though the inquiring attorney promised to refrain from "personally approaching anyone concerning possible legal representation."  The Ethics Committee indulged in the assumption that "almost every encounter with the public will be a one-on-one conversation with a person, who, because he or she approached the booth, is likely to be in need of legal services."  The Ethics Committee concluded that a blanket ban on such activities was necessary in order to protect vulnerable members of the public from potential abuse and overreaching by trained advocates, citing Ohralik v. Ohio State Bar Association, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978).

In a subsequent opinion discussing the ethics of distributing business cards and other materials to seminar participants, Ariz. Op. 92-10 (October 30, 1992), the Ethics Committee continued its admittedly "cautious" approach.  Based in part upon Ariz. Op. 91-04, the Ethics Committee advised lawyers "to avoid any possibility of an in-person solicitation" and to "refrain from personally distributing business cards or initiating any personal contact with any of the seminar participants."  Ariz. Op. 92-10, supra, at pp. 4-5.

Formal opinions from the few jurisdictions that have considered this issue generally have allowed lawyers to sponsor trade show booths so long as there is no in-person solicitation and other safeguards are followed.  See Mo. Op. 990116 (5/99-6/99) (Yes); Pa. Op. 91-13B (1/25/91) (Yes); and Utah Op. 99-04 (6/30/99) (Yes).  But see Kan. Op. 98-04 (4/2/98) (No).

Ultimately, the Arizona Supreme Court is the judge of what constitutes ethical behavior under the Arizona Rules of Professional Conduct, subject to the First Amendment.  Although to date the Arizona Supreme Court has not addressed the issue raised by this particular inquiry, the Court historically has followed U.S. Supreme Court directions on the First Amendment while taking strong steps to protect the public.  See, e.g., Official Comment to the 1989 amendments to ER 7.3(b).

The U.S. Supreme Court first held that commercial speech was entitled to First Amendment protection in Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976).

One year later, the Court held that lawyer advertising was a form of protected free speech.  Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977).  Holding that the First Amendment barred states from enacting absolute bans against lawyer advertising, the Court indicated that free and clean advertising is generally desirable because it educates the public and promotes the proper administration of justice.  Although considerations of professional dignity alone must yield to the First Amendment (Id., 433 U.S. at pp. 369-372), the Court emphasized that states still had the right to place reasonable restrictions on the time, place, and manner of advertising in order to protect the public.  Id. at pp. 384-385.

Except when the information is false, misleading, or proposes an unlawful transaction, absolute bans on commercial speech have not fared well in the U.S. Supreme Court.  See, e.g., Bates v. State Bar of Arizona, supra, 433 U.S. 350 (prohibiting absolute bans on lawyer advertising); Shapero v. Kentucky Bar Association, 486 U.S. 466, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988) (no absolute bans on solicitation in the context of direct mailings to potential clients).

However, in Ohralik, the Court held that states have the right to enact outright bans against "in-person" solicitation by lawyers because of its potentially coercive effects on vulnerable people and because the difficulty of preserving oral solicitations might encourage fraud.  Ohralik v. Ohio State Bar Association, 436 U.S. 447, 465-466.  Writing for the Court, Justice Powell did not define what constitutes an "in-person" solicitation.  However, he held that a prophylactic rule was constitutionally justified in order to minimize the potential for intrusion, distress and invasion of privacy whenever an attorney initiates an in-person contact, "even when no other harm materializes."  Id.  Indeed, the contact in Ohralik was initiated by the attorney and was particularly egregious.  One young accident victim was approached while she was lying in traction and the other was approached shortly after being discharged from the hospital.  Under the circumstances, the persons solicited in Ohralik "were especially incapable of making informed judgments or of assessing and protecting their own interests."  Id., 436 U.S. at p. 467.

The question presented by this inquiry is whether sponsoring a booth at a "business exposition" in and of itself constitutes a prohibited in-person solicitation within the meaning of ER 7.3(a) and whether the Ethics Committee correctly recommended a blanket ban on such activities in Ariz. Op. 91-04.

While it is true that a booth constitutes an invitation to meet the attorney, so does the sign in front of a lawyer's office and an attorney's ad in the telephone book.  All of these forms of communication are solicitations targeted to members of the public who may need legal services now or in the future.  But even though each of these methods frequently leads to a face-to-face encounter between lawyers and members of the public, the subsequent meeting does not thereby transform the original solicitation into a proscribed "in-person" solicitation within the meaning of ER 7.3(a).  See Ariz. Op. 87-23, supra ("in-person" contacts are unlawful under ER 7.3(a) only when they are initiated "by the attorney").

The sine qua non of an "in-person" solicitation within the meaning of ER 7.3(a) is the initiation of contact by a lawyer with a member of the public in such immediate circumstances of time and place that the person would reasonably feel pressured, intimidated, or importuned.

There is nothing inherently coercive about maintaining a booth at a business exposition so long as the decision to make "in-person" contact is made by the public, not the lawyer.  While the potential for abuse or overreaching always exists once contact is made, it is not necessarily any greater in this situation than it would be for a member of the public attending his or her first meeting in the prospective lawyer's office.  Indeed, the casual visitor to a business exposition might feel less obligation to the lawyer than someone who reserves a block of time in the lawyer's own office.  It would be a relatively simple matter for a visitor to a business exposition to break off contact with the lawyer and rejoin the milling crowd.

In addition, business people as a whole are not generally characterized by their vulnerability or susceptibility to pressure tactics, particularly in a public forum.  While some visitors to the exposition might need legal services, it is just as likely that others will have no immediate need for such services at all.  They might simply wish to engage the lawyer in conversation to familiarize themselves with the delivery of legal services for future reference.  Balancing public protection concerns with the public's interest in enjoying the free flow of accurate information, there seems to be little justification for adopting a blanket ban on lawyer's information booths at business expositions, so long as proper safeguards are observed.  In Edenfield v. Fane, 507 U.S. 761, 774-776, 113 S.Ct. 1792, 1802-03 (1993), the Court used the First Amendment to strike down a state ban on in-person solicitation by CPA's.  Although the Court distinguished Ohralik based in part upon its belief that CPA's are more objective than lawyers, at least by training, the Court also noted the significant differences between the accident victims in Ohralik and sophisticated business persons whom CPA's "typically" try to market.

Based upon the foregoing, it seems clear that the Ethics Committee erred by recommending an absolute ban on the sponsorship of booths by lawyers at business expositions in Ariz. Op. 91-04.  The absolute ban recommended by Ariz. Op. 91-04 is not warranted, because it covers situations where in-person contacts are initiated by the public, not by the attorney.  Recall Ariz. Op. 87-23, supra, which drew the dividing line between prohibited "in-person" solicitations and all other forms of solicitation at the point where contact is "initiated by the attorney" (emphasis added).  In Ariz. Op. 91-04, by contrast, the inquiring attorney emphasized that she had no intention whatsoever of approaching anyone to solicit business, and there was no indication in the facts that she had any reason to believe that she would be interacting with vulnerable people at the upcoming trade show.

Although a lawyer may ethically sponsor a booth at a business exposition, certain public protection limitations still apply.  But in order to remain within the First Amendment guidelines set forth by the Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 566 (1980), the focus of regulation in this area should be on the prevention of coercion and the protection of vulnerable persons rather than the dignity of the legal profession.

Addressing the issue of coercion, lawyers sponsoring a booth at a business exposition must not approach, accost, or importune members of the public in the area of the booth or otherwise.  Moreover, lawyers must not use any deceptive tactics to influence the public's decision to visit or not to visit the booth.  The decision to make contact must always be made by the public, not by the lawyer.  But once members of the public take the initiative to contact the lawyer, the lawyer has the right to respond and to distribute written materials which otherwise comply with the Rules of Professional Conduct, just as the lawyer would be free to do in his or her own office.

On the issue of vulnerability, the lawyer must consider the nature of the exposition beforehand and avoid gatherings where vulnerable people reasonably can be expected to be found.  The risk of vulnerability would ordinarily be less in a business exposition than it would be in the context of a victims' support group meeting, for example.

Of course, lawyers must be sensitive to the likelihood that visitors to their booth will often attempt to shift the conversation from general topics to matters bearing on their own situation.  At that point, lawyers should caution visitors that they have the right to keep such matters confidential (ER 1.6) and encourage them to refrain from discussing particular situations except with their own attorney.

In addition, lawyers should be mindful of other potentially applicable ethical rules, including but not limited to the content guidelines in ER 7.1, the need to preserve any written materials in the manner required by ER 7.2(b), and the avoidance of conflicts of interest within the meaning of ER 1.7.


[1] Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.  Ó State Bar of Arizona 2002