Opinion #123. Participation in Seminar as Public Communication
Issued by the Professional Ethics Commission
Date Issued: April 23, 1992
A Marketing Organization obtains financial planners and attorneys to conduct workshops and seminars. Marketing Organization arranges the sessions through various organizations and conducts the publicity. An attorney and financial planner conduct a workshop/seminar. Part of the session includes the attorney providing one hour of consultant time to each attendee in private. Marketing Organization sets up the private appointment and acquires information about the attendees that is provided the attorney for the consultation.
Compensation from the attorney to Marketing Organization is calculated, in one instance, solely upon the number of attendees at the session; and, in another instance, upon the number of attendees who attend plus make the appointment with the attorney, regardless of whether the attorney is thereafter actually retained for any services.
Do either of the above compensation arrangements with Marketing Organization violate any provision of the Bar Rules?
Two Bar Rules could arguably apply to the above arrangements. The first is Rule 3.3(e) which states: “A lawyer or law firm shall not share legal fees with a non‑lawyer [subject to exceptions not applicable to this discussion].” However, that Rule does not apply to either of the arrangements described above because the compensation to Marketing Organization is not based upon fees the lawyer collects as a result of the session. Marketing Organization is to be compensated whether or not the lawyer renders any services to these attendees; and its compensation is not based upon fees charged by the lawyer to the attendees. Its compensation is no different from compensation paid any media advertiser based upon the size of the audience it reaches.
A more difficult issue is presented by Rule 3.9(f)(2) which reads as follows:
A lawyer shall not compensate, or give anything of value to, a person or organization to recommend or secure employment by a client, or as a reward for having made a recommendation resulting in employment by a client, except that a lawyer may pay for public communication permitted by these rules and may pay the usual and reasonable fees or dues charged by a lawyer referral service operated, sponsored, or approved by a bar association.
The initial question is whether the arrangements fall within the general proscription of the Rule. The Commission concludes that they do. While there is presumably no explicit recommendation of employment being made by Marketing Organization in its advertising to the attendees, one cannot ignore that the entire enterprise is intended to suggest and encourage consideration of such employment; and Marketing Organization’s compensation is directly based upon the success of securing private communications between the lawyer and the attendees. While the technique is certainly more sophisticated than the archetypical ambulance chasing and lacks the risks of undue influence that would run afoul of Rule 3.9(f)(1), the result is the same: the attendees are encouraged to avail themselves of the “consultations,” and Marketing Organization’s compensation is based in part on the number of those “consultations.”
The next question is whether either of the exceptions to the general proscription of Rule 3.9(f)(2) applies. The last exception does not. The Marketing Organization is not “a lawyer referral service operated, sponsored or approved by a bar association.” Nothing in the facts reveals any relationship whatever to any bar association. See Opinion No. 87.
However, with respect to the first compensation arrangement described above, the Commission concludes that the other exception set forth in Rule 3.9(f)(2) applies. The Marketing Organization is providing the lawyer a forum for public communication for which the lawyer pays based on the size of the public the Marketing Organization is able to provide for the session. The fact that the lawyer may offer to that public free consultation in addition to the public communication makes no difference since the Marketing Organization is not being paid by the attorney for the latter contact. The lawyer is merely paying for the opportunity to communicate with an audience publicly.
However, the second compensation arrangement cannot be similarly described. Marketing Organization is being paid based (at least in part) upon the number of private contacts the lawyer makes as a result of its efforts and not solely for the public communication.
In summary, Rule 3.9(f)(2) is violated if Marketing Organization is compensated on the basis of the number of private consultations that come to the lawyer. If its compensation is based solely upon the number of attendees attending the workshop/seminar as a result of its public communication, then no violation occurs. The distinction is subtle, as the above facts reveal, but it achieves a principled balance between the need to protect the public from “surreptitious private client recruitment” (see Advisory Committee’s Notes to Rule 3.9(f)) and the encouragement of public communication of legal matters, whether or not motivated by a desire for employment.