Public communications, solicitation, and referrals - Group l...

Learning Outcomes

After reading this article, you will be able to identify the rules governing public communications about legal services, direct solicitation, referrals, and participation in group legal service plans. You will understand the ethical boundaries for advertising, the requirements for reciprocal referral agreements, and the special considerations for group legal services, enabling you to answer MPRE questions on these topics with confidence.

MPRE Syllabus

For the MPRE, you are required to understand the ethical rules that regulate how lawyers communicate about their services and interact with potential clients. This article covers:

• Advertising and other public communications about legal services, including permissible content and required disclosures.
• Prohibitions and exceptions regarding solicitation of clients through live person-to-person contact.
• Rules for entering into and disclosing reciprocal referral agreements with lawyers and nonlawyer professionals.
• Participation in group and prepaid legal service plans, including solicitation by such plans and the lawyer’s responsibilities.
• Restrictions on fee sharing with nonlawyers and the prohibition on partnerships with nonlawyers for the practice of law.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is generally prohibited under the Model Rules?
   1. Paying for a television advertisement about your services.
   2. Entering a reciprocal referral agreement with a nonlawyer, without informing clients.
   3. Participating in a group legal services plan not owned by you.
   4. Listing your practice areas on your website.
2. A lawyer agrees to refer clients to a financial planner, who in turn refers clients to the lawyer. Which is required for this arrangement to comply with the Model Rules?
   1. The agreement must be exclusive.
   2. The agreement must be indefinite.
   3. Clients must be informed of the existence and nature of the agreement.
   4. The lawyer must pay the planner for each referral.
3. Which statement about solicitation is correct?
   1. All written advertisements are prohibited.
   2. Live person-to-person solicitation for pecuniary gain is generally banned, with limited exceptions.
   3. Lawyers may solicit anyone in person if they disclose their identity.
   4. Group legal service plans may not use any form of solicitation.
4. Under the Model Rules, a lawyer may:
   1. Form a partnership with a nonlawyer to provide legal services.
   2. Pay the usual charges of a qualified lawyer referral service.
   3. Pay a real estate agent for each client referred.
   4. Share legal fees with a nonlawyer for client referrals.

Introduction

Lawyers must follow strict rules when communicating about their services, soliciting clients, and participating in referral or group legal service arrangements. These rules are designed to protect the public from misleading information and undue influence, while allowing lawyers to inform the public about available legal services. Understanding the boundaries of permissible advertising, solicitation, and referrals is essential for MPRE success.

Key Term: Advertising
Any public communication by a lawyer or law firm about available legal services, including print, broadcast, and online media.

Public Communications About Legal Services

Lawyers may advertise their services through various media, provided the information is truthful and not misleading. All advertisements must include the name and contact information of at least one responsible lawyer or law firm. Statements that create unjustified expectations, unsubstantiated comparisons, or imply results that cannot be guaranteed are prohibited.

Key Term: Solicitation
A targeted communication initiated by a lawyer offering legal services to a specific person, typically for pecuniary gain.

Solicitation of Clients

Direct, live person-to-person solicitation for pecuniary gain is generally prohibited, except when the recipient is a lawyer, a family member, or someone with a close personal or prior professional relationship with the lawyer. Written, recorded, or electronic communications are permitted if they do not involve coercion, duress, or harassment, and the recipient has not made known a desire not to be solicited.

Key Term: Reciprocal Referral Agreement
A non-exclusive arrangement between a lawyer and another professional to refer clients to each other, with required client disclosure.

Key Term: Group Legal Services Plan
A prepaid or group legal service arrangement that provides legal services to members, often through employer or union plans, not owned or directed by the participating lawyer.

Referral Agreements

Lawyers may enter into reciprocal referral agreements with other lawyers or nonlawyer professionals, provided the agreement is not exclusive, does not interfere with the lawyer’s professional judgment, and clients are informed of the existence and nature of the agreement. The agreement should be reviewed periodically and must not be indefinite.

Group Legal Services

Lawyers may participate in group or prepaid legal service plans that use in-person, telephone, or real-time electronic solicitation to enroll members, as long as the plan is not owned or directed by the lawyer. The plan may not solicit persons known to need legal services in a specific matter. Lawyers must ensure that the plan’s communications comply with the rules on advertising and solicitation.

Fee Sharing and Partnerships with Nonlawyers

Lawyers are generally prohibited from sharing legal fees with nonlawyers or forming partnerships with nonlawyers if any of the activities involve the practice of law. Exceptions include payments to a deceased lawyer’s estate, retirement plans, and sharing court-awarded legal fees with a nonprofit organization that employed or recommended the lawyer.

Key Term: Fee Sharing
The division of legal fees with another party. Generally, lawyers may not share fees with nonlawyers except in limited circumstances.

Worked Example 1.1

A lawyer agrees with a local accountant to refer clients to each other. The agreement is not exclusive, but neither the lawyer nor the accountant tells clients about the arrangement. Is this referral agreement proper?

Answer:
No. While reciprocal referral agreements are permitted if not exclusive, the Model Rules require that clients be informed of the existence and nature of the agreement. Failure to disclose this information makes the agreement improper.

Worked Example 1.2

A lawyer participates in a group legal services plan operated by a union, which solicits new members through in-person presentations at workplaces. The lawyer does not own or direct the plan. Is the lawyer subject to discipline for participating?

Answer:
No. Lawyers may participate in group legal service plans that use in-person solicitation, provided the plan is not owned or directed by the lawyer and does not solicit persons known to need legal services for a particular matter.

Worked Example 1.3

A lawyer pays a website for online advertising, and the website charges a fee for each potential client lead generated. The website does not recommend the lawyer, but only provides contact information to users. Is this arrangement allowed?

Answer:
Yes. Lawyers may pay for lead generation services as long as the service does not recommend the lawyer, the fee is not for referrals, and all communications comply with advertising rules.

Exam Warning

Be careful not to confuse permissible advertising with prohibited solicitation. Live, direct solicitation for pecuniary gain is generally banned, but written or electronic advertisements sent to the public are allowed if not misleading or coercive.

Revision Tip

Always check whether a referral agreement is exclusive or indefinite, and whether clients are informed. These are common MPRE traps.

Summary

Lawyers may advertise their services and participate in group legal service plans, but must avoid misleading statements, improper solicitation, and undisclosed referral arrangements. Fee sharing with nonlawyers and partnerships involving the practice of law are generally prohibited. Always inform clients about referral agreements and ensure all communications comply with the Model Rules.

Key Point Checklist

This article has covered the following key knowledge points:

• Lawyers may advertise legal services if communications are truthful and not misleading.
• Direct, live solicitation for pecuniary gain is generally prohibited, with narrow exceptions.
• Reciprocal referral agreements must be non-exclusive, time-limited, and disclosed to clients.
• Participation in group legal service plans is allowed if the plan is not owned or directed by the lawyer.
• Fee sharing with nonlawyers and partnerships involving the practice of law are generally forbidden.
• All advertisements must identify at least one responsible lawyer or law firm.
• Lawyers must ensure group legal service plans comply with advertising and solicitation rules.

Key Terms and Concepts

• Advertising
• Solicitation
• Reciprocal Referral Agreement
• Group Legal Services Plan
• Fee Sharing