State Bar of Arizona Ethics Opinions
92-10: Advertising and Solicitation; Seminars
Committee discusses guidelines for attorneys participating in seminars sponsored by the Speakers' Bureau of the State Bar.
The inquiring attorney is a member of the Public Relations Committee of the State Bar of Arizona. This Committee is reorganizing the State Bar's Speakers' Bureau and wishes to develop some ethical guidelines for participating attorneys.
The Bureau will be a source of attorney/speakers from private practice and government who will be sent to address public and private gatherings at the request of civic, professional, social and other groups. The groups will learn of the Bureau through the mailing of an informational brochure. The brochure elicits information concerning the area of law for which a speaker is sought, as well as other information such as the desired time and date of the seminar. Upon receipt of a completed brochure, the Bureau will arrange for a qualified attorney to contact the group.
Attorneys interested in joining the Speakers' Bureau will complete a form indicating areas of interest and legal topics on which they wish to speak. An attorney will not be required to be a Bar-certified specialist in the area in which he or she indicates a desire to speak. The inquiring attorney does not expect that the attorney who is to speak will personally publicize the speaking engagement. Instead, she believes that the group requesting the attorney to speak will likely do so. Such publicity might include written announcements sent to group members and to the public in general, as well as the use of newspapers, circulars and television and radio announcements.
The inquiring attorney has submitted the following questions for consideration by this committee:
1. Must a disclaimer be made (in the material descriptive of the attorney/speaker submitted to the group and in its publicity) concerning the attorney's expertise, particularly if the attorney speaks in an area of the law in which the State Bar certifies specialists, but the attorney does not possess such a certification?
2. May the attorney, with ethical propriety, distribute or make available, at the speaking engagement, his or her business cards?
3. May the attorney ethically offer a special rate or consultation fee to members of the audience who might decide to consult him or her?
4. May the attorney ethically distribute to members of the audience written materials regarding the area of law about which he or she is to speak which contain general information about the topic, and/or information regarding the attorney's particular practice in that area of the law?
5. May the attorney ethically distribute to the members of the audience written materials (newsletters, for example) that are usually directed to the attorney's existing clients?
6. May the attorney ethically distribute at the speaking engagement copies of articles he or she has written? If so, should there be a disclaimer concerning the attorney's expertise, particularly if the article covers an area as to which the Bar certifies specialists but the attorney is not so certified?
7. May the group charge a fee for admission to the gathering at which the attorney is to speak? If so, may the attorney ethically accept a part of that fee?
ETHICAL RULES INVOLVED
ER 7.1. Communications Concerning a Lawyer's Services
ER 7.2. Advertising
ER 7.3. Direct Contact with Prospective Clients
ER 7.4. Communication of Fields of Practice
The State Bar Committee on Rules of Professional Conduct has addressed the issues surrounding attorney participation in seminars and on radio and television programs on several previous occasions. See, e.g., our Opinions Nos. 115A (February 15, 1963), 70-2 (January 16, 1970), 70-8 (March 11, 1970), 71-20 (July 23, 1971), 71-30 (October 19, 1971), 73-8 (April 4, 1973), 73-10 (April 16, 1973), 73-14 (May 8, 1973), 73-24 (August 15, 1973), 74-17 (July 16, 1974) and 81-11 (May 17, 1981). The two opinions we have released on this subject since the adoption of the Rules of Professional Conduct effective February 1, 1985, are Opinions Nos. 87-23 (October 26, 1987) and 88-07 (September 13, 1988). (And cf. Opinions Nos. 90-05 (June 26, 1990), 90-07 (August 2, 1990) and 92-5 (March 26, 1992).) Opinions Nos. 87-23 and 88-07 adopted the following guidelines for attorney/speakers who wish to take part in seminars on legal topics:
1. It is proper for an attorney to participate in a legitimate seminar on a legal subject as long as the seminar is conducted in a proper manner.
2. Seminar panelists may properly consist of attorneys or laymen or both. Those attending the seminar may properly consist of attorneys or laymen or both.
3. An attorney may properly be paid for participating in a seminar.
4. The seminar announcement and other related written materials may list the name of the attorney participant with a short, factual statement of his or her qualifications.
5. Where an attorney or law firm is sponsoring a seminar and advertising it, the advertisement must contain the name of an attorney responsible for its content. The attorney must retain a copy or recording of the advertisement, and a record of when and where it was used, for three years, as required by ER 7.2(b).
6. The purpose of the seminar must be to inform rather than to give legal advice. It is improper for an attorney, during the seminar, to answer questions of laymen concerning their specific individual legal problems. Anyone inquiring about specific problems must be admonished to consult an attorney for legal advice.
7. Because of problems related to the disclosure of client confidences, because of the potential for solicitation, and because there are certain restrictions on pretrial publicity, no reference should be made to pending cases being handled by the attorney.
See our Opinion No. 87-23 (October 26, 1987) at 4. These guidelines provide the basic framework within which an attorney may ethically participate in a seminar. With this background information, we can proceed to address the inquiring attorney's specific questions.
1. NO DISCLOSURE NEED BE MADE THAT AN ATTORNEY/SPEAKER IS NOT A CERTIFIED SPECIALIST IN HIS OR HER AREA OF PRACTICE.
ER 7.4. provides, in part, that: "A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law." The Comment to ER 7.4 continues: "If a lawyer practices only in certain fields, or will not accept matters except in such fields, the lawyer is permitted so to indicate." The only restriction on conveying such information is that an attorney may not state or imply that he or she is a specialist, except as set forth in ER 7.4(a) (concerning designation as a patent attorney), 7.4(b) (concerning admiralty designation), and 7.4(c) (concerning State Bar certification or its equivalent).
We believe that an attorney's (or the Bureau's) truthful representation that the attorney is qualified to speak on a particular area of law is not, in itself, an implication that the attorney is a certified specialist in that area. Therefore, no disclaimer is required in communications concerning the proposed seminars. Of course, attorneys involved with the Speakers' Bureau must refrain from referring to the speaking attorneys as "specialists" or as those who "specialize" in a particular area. Instead, the Bureau should use statements such as "practice limited to [area]" or "emphasis on [area]" which are appropriate and permissible. See our Opinion No. 87-11 (June 17, 1987) at 2.
2. AN ATTORNEY MAY MAKE AVAILABLE HIS OR HER BUSINESS CARDS TO SEMINAR ATTENDEES.
According to guideline 4 listed above, written materials concerning the seminar may list the name of the lawyer/speaker and provide a short, factual statement of the lawyer's qualifications. This Committee has previously determined that this same information may be mailed to members of the public. Opinion No. 88-07 (September 13, 1988) at 8. If an attorney may mail out this information, it follows that he or she may also make available the brief factual information that is typically contained on a business card to members of the audience at the seminar. Of course, the information contained on the business card must not be false or misleading. ER 7.1.
The attorney should not distribute the business cards personally, because of the potential for improper in-person solicitation. Again, our Opinion No. 87-23, supra, is instructive:
ER 7.3 is designed to prevent the "potential for abuse" inherent in "a direct interpersonal encounter" wherein a layperson is subject to "the private importuning of a trained advocate." Comment to ER 7.3. The Committee interprets ER 7.3's ban on solicitation as applying to a personal contact directly between an attorney and a specific potential client with whom the attorney has had no prior relationship, where the contact is initiated by the attorney for pecuniary gain.
Opinion No. 87-23 at 5. On the basis of this interpretation, we concluded in our Opinion No. 91-04 (January 15, 1991) that it was improper for an attorney to set up a booth at a business exposition, where she would distribute business cards and other literature concerning her practice, since we believed that, as a result, the attorney would likely be approached by prospective clients in need of the legal services she provided. Opinion No. 91-04 at 5.
Therefore, we recommend a cautious approach, and advise participating attorneys to avoid any possibility of an in-person solicitation. An attorney/speaker should refrain from personally distributing business cards or initiating any personal contact with any of the seminar participants. If a business card is to be distributed, it should be made available with other written materials concerning the seminar.
3. AN ATTORNEY MAY OFFER A SPECIAL RATE OR CONSULTATION FEE TO THE MEMBERS OF THE SEMINAR AUDIENCE.
We believe this question is answered in part by our discussion above: As long as the attorney/speaker does not engage in any in-person solicitation with the members of the seminar audience, he or she may communicate information concerning the fees he or she charges. Such communications were specifically approved in our Opinion No. 87-23, supra:
The committee believes that an offer to provide a consultation, whether free or paid, written or oral, made to all seminar participants generally, unaccompanied by any pressure or coercive conduct, does not constitute solicitation under ER 7.3 if the following two requirements are met: first, the offer must be extended to a general group rather than a specific person; second, there must be no pressure or importuning on the seminar participants to accept the offer. The attorney's conduct, or the conduct of one acting on his behalf, must be such that the seminar participants are free to decline the offer and to walk away easily at the conclusion of the seminar.
Opinion No. 87-23 at 6. However, we specifically caution the inquiring attorney and members of the Bar that such communications are governed by ER 7.1, and must not be either false or misleading. Obviously, fees charged will vary depending on the unique circumstances of each case. As a result, many factors are employed in determining an appropriate and reasonable fee. See ER 1.5(a). An attorney should avoid quoting a flat rate or a deceptively low, "rock-bottom" fee in order to attract clients. We believe the safest approach is for the attorney/speaker to caution seminar attendees that any fees quoted (beyond an initial consultation fee) may vary depending on the circumstances of the particular case.
4. & 5. AN ATTORNEY/SPEAKER MAY DISTRIBUTE WRITTEN MATERIALS, SUCH AS NEWSLETTERS AND ARTICLES HE OR SHE HAS WRITTEN, EVEN WHERE THE WRITTEN MATERIALS ARE USUALLY DIRECTED TO THE ATTORNEY'S EXISTING CLIENTS. NO DISCLAIMER NEED BE MADE CONCERNING THE FACT THAT THE ATTORNEY IS NOT A CERTIFIED SPECIALIST.
In our Opinion No. 90-05 (June 26, 1990), we determined that a law firm could send out a bimonthly construction law journal to members of the general public who engaged in construction-related activities. Because the journal was informational in nature, and contained no more than short factual statements concerning the qualifications of the attorneys who authored the journal, we believed that the advertising disclaimer of ER 7.2 (e) (1) was not required. See also our Opinion No. 90-07 (August 2, 1990) (law firm may mail newsletter to newly established businesses containing advisory material relating to the recipient company's business as long as advertising disclaimer is included). Certainly, if such information may properly be mailed to members of the general public, it may be distributed to those in attendance at a seminar where the attorney is speaking. As discussed above, the cautionary language of Opinion No. 87-23, supra, with respect to in-person solicitation applies here. The attorney/speaker should not personally hand out any informational material to any of the members of the audience. Additionally, no disclaimer need be made that a speaking attorney is not a certified specialist, subject to the restrictions set forth in our response to question number 1. above.
6. AN ATTORNEY/SPEAKER MAY RECEIVE A PART OF ANY FEE A GROUP CHARGES FOR PUTTING ON A SEMINAR ON A LEGAL ISSUE.
Guideline number 3. of our Opinion No. 87-23, supra, provided that a lawyer may properly be paid for participating in a seminar. We believe that this guideline is dispositive of the inquiring attorney's question. Of course, ER 5.4(a) prevents a lawyer from sharing "legal fees" with a non-lawyer. This rule's purpose is to protect the attorney's independence of professional judgment. See Comment, ER 5.4. This danger is not present in the context of an attorney/speaker giving a presentation at a seminar and, consequently, we believe that ER 5.4(a) does not apply. We also caution that the fee the attorney/speaker receives must not be related in any way to legal business generated for him or her by the seminar. See ER 7.2(c).
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.
©State Bar of Arizona 1992
Call the State Bar of Arizona Ethics Department at (602) 340-7236 for a copy of this Opinion.