Ethics Opinions

Opinion No. 87-3

March 1987

Summary: A law firm may not permit a financial services agency to solicit business for the firm by writing letters to the agency's clients advising that it has arranged for the law firm to perform services for the agency's clients at reduced rates. Such an arrangement would violate DR 2-103(E)'s prohibition of paid solicitation. The inducing of solicitation of business by a third party for a law firm without payment by the firm violates DR 1-102(A)(2) in situations where the law firm itself would be forbidden to solicit.

Facts: A law firm has inquired whether it may allow a partner in a financial services and insurance agency that is the firm's client to write letters to his clients advising them that he has made arrangements for the law firm to perform certain estate planning work for his clients at reduced rates. The law firm states that the idea was initiated by its client, that the information contained in the proposed client letter is accurate, and that it has not obligated itself to refer anyone to the financial services agency.
Discussion:We believe that DR 2-103, as recently amended by the Supreme Judicial Court, proscribes the proposed arrangement. DR 2-103(E) states that, with some exceptions not relevant to the inquiry, "A lawyer shall not pay any person or organization to solicit professional employment for the lawyer from a prospective client." The financial services and insurance agency, the client of the law firm, recommends the firm's services to its clients. We do not know whether there is any pattern of non-obligatory mutual references of which this proposal is a part but we do know that the proposed letter from an owner of the agency to its clients would "inform them of the agreement between [the agency and the law firm]" to offer the law firm's services at reduced rates. The offer of reduced rates to the agency's customers seems to us to be a sufficient conferring of a benefit on the agency in the form of helping it to get business so as to constitute a "payment" within the purpose and meaning of DR 2-103(E). Indeed, the Supreme Judicial Court's Committee on Lawyer Advertising, which recommended DR 2-103(E) in its present form to the Supreme Judicial Court, indicated its own broad reading of this provision when it stated in its accompanying commentary that "the practical effect of the limitation will be to limit most solicitation to that performed by the lawyer or law firm itself."
There is one other feature of DR 2-103(E) that we believe we should call to the attention of the bar. The wording of DR 2-103(E), forbidding only paid solicitation, would seem to countenance all unpaid solicitation, that is, all solicitation induced by a lawyer but without making a payment to a solicitor. That is not the case. Unpaid solicitation is permissible only in those situations where the rules permit lawyers themselves to solicit. In those situations where lawyers may not solicit, they may not induce anyone else to solicit for them even if no payment is made. DR 1-102(A) states that "a lawyer shall not (2) Circumvent a Disciplinary Rule through actions of another.'' That rule applies throughout all the provisions of the Disciplinary Rules, including DR 2-103.

Permission to publish granted by the Board of Delegates on May 29, 1987.
As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.