Summary: A law firm may properly provide an educational seminar to a mixed audience of clients and non-clients so long as neither the seminar brochure nor the presentation contains a recommendation that the law firm or any of its lawyers be employed as a legal practitioner for a fee or otherwise. Such an educational seminar does not constitute "solicitation" under DR 2-103 even if part of the motivation is the hope that future business be generated. Invitations sent to non-clients to such a seminar therefore need not comply with the labeling or other requirements of DR 2-103. Opinion 83-4 of this committee is reaffirmed.
Facts: A law firm proposes to conduct a seminar to educate laypersons to recognize their legal problems relating to specific areas of the law and to educate lawyers, accountants, and other professionals in such areas of law. The firm plans to invite not only clients and lawyers with whom it has been involved in providing legal services but also persons who are not clients and who do not counsel or provide services to clients. It is expected that a majority of the attendees will be clients, but that is not certain. An effort will be made to qualify the seminar for continuing education credits. The firm proposes to mail a brochure to the invitees describing the subjects of the seminar and specifying a registration fee that will include seminar materials, a lunch and a cocktail reception. The fee will be treated as a reimbursement of costs, not a professional fee for services, and will not constitute full reimbursement for all expenses of the seminar. The inquiry describes the program and the brochure to be mailed to the invitees as follows:
The seminar brochure neither expressly nor impliedly suggests that those reading the brochure employ ... or consider employing the firm or any lawyers in the firm, and no written or oral statement will be made at the seminar suggesting that the seminar attendees employ ... or consider employing the firm or any lawyers in the firm for particular problems or questions. Neither the seminar brochure nor the seminar presentation will contain or provide a recommendation that the firm or any lawyers be employed as a legal practitioner for a fee or otherwise ... . While it is possible that legal business might be generated for the firm on account of the seminar, neither the seminar brochure nor the seminar presentation is intended to constitute a communication directed at specific individuals or groups for the purpose of obtaining business or securing employment.
The inquiry asks whether newly revised DR 2-103 requires that the written announcement of the seminar be labeled "advertising" on its face and on the envelope, that a copy of the communication be retained for two years, and that other requirements of DR 2-103 be met.
Discussion: DR 2-103, before it was amended in July 1986, read in material part as follows: "A lawyer shall not, by direct mail or other form of personal contact, recommend employment, as a private practitioner for a fee, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer ... ." In Opinion 83-4, this committee responded to an inquiry from a lawyer proposing to give a free seminar to unions and their members about the provisions of the Workers' Compensation Law with the underlying intent that business would be generated for the future. In responding, the committee noted that the Ethical Considerations to the Disciplinary Rules, which were not adopted by the Supreme Judicial Court but which may be used to give guidance as to their interpretation, "have emphasized the obligations of lawyers to educate laypersons to recognize their legal problems." In particular, "EC 2-2 specifically recognizes that lawyers should encourage and participate in educational and public relations programs concerning our legal system but cautions that 'such educational programs should be motivated by a desire to benefit the public rather than to obtain publicity or employment for particular lawyers.'"
Opinion 83-4 acknowledged the difficulty of drawing a precise line between the lawyer's professional responsibility to educate and the anti-solicitation provisions of the then DR 2-103. Noting the well-known fact that lawyers often hold seminars on legal topics for laypersons and lawyers where part of the motivation is the generation of future legal business, the committee advised that such seminars were permissible so long as there was no recommendation at the seminars or to the unions that the lawyer be employed as a private practitioner for a fee.
The present inquiry focuses on the seminar brochure and not the seminar presentation itself. Since the purpose of the seminar brochure is to invite attendance at the seminar presentation and since DR 2-103(C) and (D) state the basic terms of coverage in identical terms ("A lawyer shall not solicit professional employment for a fee from a prospective client ... ."), our response will of necessity discuss both the brochure and the presentation itself.
DR 2-103 in relevant part now reads:
(C) A lawyer shall not solicit professional employment for a fee from a prospective client by written communication ... directed to such prospective client unless:
(1) each such communication is clearly labeled 'advertising' on its face and on any envelope or container; and (2) the lawyer retains a copy of such communication for two years.
(D) A lawyer shall not solicit professional employment for a fee from a prospective client in person or by personal communication by telephone, electronic device, or otherwise.
The net result of the 1986 amendment of DR 2-103 by the Supreme Judicial Court has been to replace the former blanket prohibition of solicitation of employment for a fee with a more selective prohibition. The ban on direct or in-person solicitation was retained. The ban on indirect or mail solicitation was removed subject to compliance with certain conditions. Given that history, it seems to the committee that if its Opinion 83-4 was a correct interpretation of DR 2-103 as it existed prior to the recent amendment, then its advice is still correct. Nothing in the amendment suggests that it should be read as prohibiting what was permissible under the former absolute prohibition of solicitation for a fee. The rule formerly stated that a lawyer "shall not ... recommend employment, as a private practitioner for a fee, of himself, his partner, or associate ... ." The relevant prohibitory portions of the rule now state that "A lawyer shall not solicit professional employment for a fee ... ." The changed wording of the current prohibition does not suggest that the definition of what constitutes "solicitation" has been broadened.
In distinguishing "advertising," the more general form of obtaining business that is the subject of DR 2-101, from "solicitation," the subject of DR 2-103, the Supreme Judicial Court, in its opinion accompanying the amendment of DR 2-103, referred to "solicitation" as "communications (in-person or by such means as mail, telephone, or other electronic device) directed at specific individuals or groups for the purpose of obtaining business or securing employment." In the Matter of Amendment to SJC Rule 3:07, 398 Mass. 73, 83 (1986). We believe that that description was set forth only to distinguish communications that constitute "solicitation" from "communications which are circulated more generally through newspapers, television commercials, or placards in mass transit vehicles," which are to be "considered 'advertising' subject to ... DR 2-101 ... even when targeted at specific legal needs." Ibid. We do not believe that that description was meant to indicate that the former prohibition against recommending oneself for employment was being expanded to include any communciation of any sort by a lawyer to a non-client layperson that was in any part motivated by purpose of obtaining business. If the Supreme Judicial Court had intended to broaden the prohibitions contained in its former anti-solicitation rule to include such things as the mailing by lawyers of invitations to educational seminars, or for that matter, of Christmas cards to non-clients, we believe that it would have so indicated in the opinion that accompanied its amendment. In fact, the major thrust of the court's opinion was the extent to which consideration of constitution law and public policy justified relaxation of the former blanket prohibition. Thus we are of the opinion that nothing in the amendment of DR 2-103 suggests that we should withdraw Opinion 83-4, and believing that it properly interprets DR 2-103 as amended, we reaffirm it.
The reaffirmation of Opinion 83-4 answers the present inquiry because the factual situation presented to us falls within the factual situation presented by that inquiry. It is our interpretation of DR 2-103 that it does not apply to a bona fide educational program that is presented without any suggestion of employment of the firm or any of its lawyers. Nor does it apply to a brochure mailed to invitees to the seminar. We should re-emphasize that our conclusion is based on the statement in the inquiry that neither the seminar brochure nor the presentation will contain or provide a recommendation that the law firm or any of its lawyers be employed as a legal practitioner for a fee or otherwise.
Permission to publish granted by the Board of Delegates on November 25, 1986. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.