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OSBA Informal Advisory Opinion 2012-01
April 10, 2012
Re: Request for Informal Advisory Opinion
You have requested the opinion of the Ohio State Bar Association Committee on Legal Ethics and Professional Conduct on several questions regarding your participation in trade shows and professional conferences.
You are counsel to a "professional group" that consists of businesses in the human resource sector. The professional group promotes its members through some joint educational and marketing efforts, although the business entities retain their separate identities. The
members of the professional group occasionally refer people in need of counsel on employment issues to you. The professional group intends to have a booth at several upcoming trade shows and conferences, with the cost of the booths being shared by members.
Based on these facts, you have raised the following questions:
1. May you help staff the client's trade-show booth? You would be present in the
booth during the show, wearing a name tag with your law firm's name. The name tag would not refer to the client or bear the client's logo.
2. May you share in the cost of the trade-show booth (booth rental, marketing
materials, etc.)?
3. If people who stop at the trade-show booth voluntarily provide their contact
information, may you use the information later for electronic or postal mailings, with the general aim of marketing your legal services?
The Committee concludes that the Ohio Rules of Professional Conduct do not prohibit the above conduct, provided that you comply with all aspects of the relevant rules, as explained below.
Background:
In 1999, the Ohio Board of Commissioners on Grievances and Discipline ("Board") issued Opinion 99-5, which dealt with lawyer marketing activity at fairs, festivals and similar public events. Ohio Adv. Op. 99-5 (Ohio Bd. Comm. on Griev. & Discp. Oct. 8, 1999)
(available at http://tinvurt.com/7yymhms). Opinion 99-5 does not provide complete guidance
specific to the inquiry above, however, because the Board there focused chiefly on whether lawyers may distribute law firm brochures at such events.
In Opinion 99-5, the Board held that personally handing law firm brochures to people passing by at a fair would violate DR 2-101(F)(1) of the former Code of Professional
Responsibility, which prohibited “any solicitation of legal business in person,” subject to exceptions for close friends, relatives, existing clients or former clients. (Id. at syl., 2.) In contrast, the Board held, giving a brochure in person to someone who requested one would be permissible, as would simply displaying brochures at a fair or other event, and allowing people to take them voluntarily. (Id. at 3.)
In general, the restrictions on in-person solicitation contained in the former Disciplinary Rules and referenced in Opinion 99-5 have been incorporated in the Ohio Rules of Professional Conduct, which became effective February 1, 2007.
Applicable Rules of Professional Conduct:
Your request for an opinion requires consideration of the following rules of the Ohio Rules of Professional Conduct (“ORPC” or “Rules”):
1.6 (lawyer shall not reveal information relating to the representation of a client, subject to certain exceptions).
1.7, cmt. [3]; 1.9
(lawyer shall not accept representation if a conflict of interest would be created, and should adopt reasonable procedures for identifying conflicts).
7.1 (lawyer shall not make or use a false, misleading, or non-verifiable communication about the lawyer or the lawyer’s services).
7.2(b)(1) (lawyer may not give anything of value in exchange for recommendation, but may pay reasonable costs of permissible advertisements or communications). 7.3(a) (lawyer shall not solicit professional employment by in-person contact when
significant motive is pecuniary gain, unless person contacted is a lawyer, or has a family relationship, close personal relationship or prior professional relationship with the lawyer).
7.3(c) (requirements for soliciting professional employment from prospective client by means of written or electronic communication).
Opinion:
1. Staffing a Client’s Trade-Show Booth
The Ohio Rules of Professional Conduct do not prohibit lawyers from helping to staff a client’s booth at a trade show. Lawyers who wish to assist a client in this way, however, are cautioned in several regards.
First, lawyers must avoid misrepresenting their role or function. Rule 7.1 bars
communications about the lawyer or the lawyer’s services that are false or misleading. When assisting at the client’s booth, the lawyer can help avoid any misleading impression that the lawyer is an employee of the professional group by wearing a name tag that clearly identifies the lawyer’s name and law firm and does not bear the client’s name or logo. In addition, the
lawyer’s verbal exchanges with people entering the booth must accurately represent the lawyer’s status as counsel for the client, and dispel any misconception that the lawyer is associated with the client’s business in some other capacity.
Second, lawyers participating in a booth at a trade show or similar event must not solicit people passing by. Rule 7.3(a) prohibits in-person solicitation for profit, subject to exceptions for in-person contact with other lawyers, family members, close personal friends and current or former clients. In connection with lawyers operating a booth at a state fair, the ABA Committee on Ethics and Professional Responsibility has defined “solicitation” as the “lawyer’s approach to a lay person who has not sought out the lawyer for possible representation.” ABA Comm. on Ethics & Prof’l Resp., Inf. Op. 85-1515, 1 (May 20, 1985) (involving a lawyer opening a temporary booth at a state fair to prepare simple wills). An example of such impermissible in-person solicitation would be standing at the entrance of the client’s booth, greeting people passing by and offering them law firm literature or inviting them to enter the booth for the
purpose of offering or providing legal services. Similarly, under the former Code of Professional Responsibility, the Board in Opinion 99-5 barred lawyers from actively offering law firm
brochures to passers-by at a fair.
Rule 7.3’s ban on in-person solicitation does not apply where the prospective client initiates the communication. See ORPC 7.3(a) cmt. [7] (specifying that Rule 7.3 does not apply to communications made “in response to requests from clients or prospective clients”). This carve-out is consistent with the Board’s ruling in Opinion 99-5 that lawyers may simply leave brochures out for prospective clients to take voluntarily. Therefore, a lawyer staffing a client’s booth at a trade show may respond to inquiries initiated by people who voluntarily enter the booth, and may hand them law-firm literature at their request, or may simply provide a stack of literature for people to take at their option.1
1
Ethics opinions from the ABA and from several jurisdictions underscore the contrast between handing literature to passers-by at an event (prohibited as “in-person solicitation”) and responding to a request for literature, or even legal services, initiated by the prospective client (permitted). See ABA Comm. on Ethics & Prof’l Resp., Inf. Op. 85-1515, 1 (May 20, 1985) (where there is no effort at “‘hawking’ or enticing prospective clients into the booth,” lawyer may work from a booth at a state fair to prepare simple wills while clients wait); Ariz. Jud. Adv. Op. 02-08 (Ariz. Sup. Ct. Jud. Eth. Adv. Comm. Sept. 2002) (lawyer may sponsor booth at business exposition and engage in face-to-face contacts with visitors, so long as contact is initiated by visitors); Kan. Leg. Ethics Op. 98-4 (Kan. Bar Ass’n Apr. 2, 1998) (lawyer may not personally hand brochures to passers-by at trade shows; such advertising involves direct solicitation of prospective clients) (unpublished opinion, available from Kansas Bar Association on request); Mich. Eth. Op. RI-99 (Mich. St. Comm. on Prof’l & Jud. Ethics Sept. 20, 1991) (law firm co-sponsoring seminar with hospital may set up booth outside seminar room to market the firm, provided attendees have option to stop at booth or not); Mo. Inf. Adv. Op. 990116 (Mo. Bar Ass’n, undated) (lawyer may occupy a booth at a trade show, but must only respond to contact initiated by attendees; contact initiated by lawyer would violate prohibition against in-person solicitation); Pa. Eth. Op. 91-13B (Pa. Bar Ass’n Comm. on Leg. Eth. & Prof’l Resp. Jan. 16, 1991) (setting up a booth at a trade show and discussing legal issues with people who voluntarily approach booth is equivalent to establishing a law office available to people desiring to come into that office to consult); Utah Eth. Op. 99-04 (Utah St. Bar. June 30, 1999) (lawyer may set up information booth at trade show and (1) may provide advice when request is initiated by prospective client; and (2) may make business cards and literature available to those who, “without in-person encouragement,” choose to take them). Contra, Md. Eth. Dkt. 2004-29 (Md. St. Bar Ass’n Comm. on Ethics 2004) (the very reason for having trade show booth is to “entice attendees to approach [the] booth and then hire [the law firm]…”; lawyer’s booth would be “fraught with potential problems” of in-person solicitation, even if it might not violate ethics rules per se) (unpublished opinion, available from Maryland Bar Association on request).
Last, the casual atmosphere of a trade show might not be conducive either to the privacy or the conflict-checking procedures necessary to the rendering of legal advice, as called for under ORPC Rule 1.6 (confidentiality of client information), Rule 1.7 and cmt. [3] (current-client conflicts of interest and duty to adopt conflict-checking procedures) and Rule 1.9 (former-client conflicts of interest). Therefore, in the event that a lawyer at a trade show is approached with a request for legal advice, it might be advisable to urge the prospective client to make an office appointment.
2. Sharing in the Cost of a Trade-Show Booth
Rule 7.2(b)(1) prohibits paying for referrals, but permits lawyers to pay “the reasonable costs” of permissible “advertisements or communications.” (Id.) The trade-show booth that is the subject of this inquiry is for the primary benefit of the client’s marketing efforts, not the lawyer’s. Nonetheless, the lawyer presumably will derive benefit as well (including by gathering contact information for future marketing communications – see § 3 below). Thus, even if the trade-show booth is not deemed an “advertisement” for the lawyer, it may benefit her by
facilitating future “communications” with prospective clients within the terms of Rule 7.2(b)(1). Therefore, the lawyer may share with her client in the cost of booths at trade shows and similar events.
3. Gathering Contact Information and Using it for Future Marketing
The contact information of trade-show attendees might be gathered in various ways, with varying results under the Rules. For instance, people who stop by the booth might be invited to put their contact information on a list with the heading “Please send me information about legal services available from your law firm.” In that event, the potential client has requested future communication, which removes subsequent marketing efforts from the scope of Rule 7.3. (Id. at cmt. [7].) (Of course, such future marketing efforts would still be required to comply with Rule 7.1’s prohibitions against false, misleading, or non-verifiable communications.)
On the other hand, the trade group sponsoring the booth might invite people stopping by to add their business cards to a bowl, promising a prize to the person whose card is selected in a random drawing. In that event, and under similar circumstances, a lawyer’s use of the contact information for marketing the lawyer’s services must be in accord with Rules 7.1, 7.3(a) and 7.3(c).
Under Rule 7.3(a), a lawyer must not contact in person (e.g., by telephone) a potential client that has not initiated or requested information from the lawyer, assuming that the addressee is not another lawyer, a family member, a close personal friend, a client or a former client. Thus, subject to the Rule 7.3(a) exceptions, a lawyer or law firm should not contact in person those people who left their business cards at the trade show booth.
Under Rule 7.3(c), postal mail or e-mail sent with a view towards soliciting professional employment must: (1) disclose how the lawyer became aware of the identity and legal need of the addressee; (2) disclaim or refrain from expressing any pre-determined evaluation of the merits of the addressee’s situation; and (3) include in the text and on the outside of the envelope and/or at the beginning and ending of any electronic communication the recital “Advertising Material” or “Advertisement Only.” In its Opinion 2007-5, the Board held that Rule 7.3(c) is
triggered whenever the communication is “personalized” by being “addressed to a contact person at the business.” Ohio Adv. Op. 2007-5, syl. (Ohio Bd. Comm. on Griev. & Discp. June 8, 2007) (available at http://tinyurl.com/7dbk84j). Therefore, in the random-card-drawing situation
described above, where the prospective clients have not expressly requested further information, follow-up marketing communications that will be personalized with their names must conform to the requirements of Rule 7.3(c).
Conclusion:
In summary, you are advised that the Ohio Rules of Professional Conduct do not prohibit you from helping to staff your client’s booth at trade shows and similar events, sharing in the cost of the booth or using attendee contact information gathered at the trade show in future marketing of your legal practice, provided that you comply with applicable Rules, including Rules 1.6, 1.7, 1.9, 7.1, 7.2 and 7.3.
Sincerely,
Legal Ethics and Professional Conduct Committee OHIO STATE BAR ASSOCIATION
Note: Advisory Opinions of the Ohio State Bar Association Legal Ethics and Professional Conduct Committee are informal, non-binding opinions in response to prospective or hypothetical questions regarding the application of the Supreme Court Rules for the Government of the Judiciary, the Rules of Professional Conduct, the Code of Judicial Conduct, and the Attorney’s Oath of Office.
