Can a law firm hire a nonlawyer to solicit business and pay them a commission on the fees they bring in?

Plain-English summary

A firm wished to hire a nonlawyer to solicit legal business and asked whether it could do so, how the nonlawyer could be paid, and what title the nonlawyer could use. The committee answered four questions. First, an attorney may hire a nonlawyer to do only the solicitation the attorney is permitted to do; the rules do not permit in-person or telephone solicitation by a lawyer or any agent (Rule 4-7.4(a), now Rule 4-7.18(a)), and a lawyer who directs or ratifies a nonlawyer's violating conduct is responsible under Rule 4-5.3(c). The nonlawyer may manage permissible marketing such as public-media advertising and direct mail under the advertising rules.

Second, the nonlawyer may be paid a straight salary, but commissions tied to legal fees derived from business the nonlawyer brings in would violate Rule 4-5.4(a)(3), which forbids dividing a legal fee with a nonlawyer. Third, the governing rules are the advertising and solicitation rules (then Rules 4-7.1 through 4-7.7, now 4-7.11 through 4-7.22), Rule 4-5.3 on nonlawyer employees, and Rule 4-5.4(a)(3).

Fourth, nonlawyer employees may have business cards that clearly indicate nonlawyer status (as the committee held in Opinion 86-4), carrying a disclaimer such as "not a member of the Bar" or "not a lawyer." The titles "solicitor," "sales person," and "production manager" are not permissible: the first two refer to activities the attorney cannot ethically permit and are misleading under Rules 4-7.1 and 4-7.6(a), and "production manager" is also misleading. "Marketing director" would be an appropriate title for a nonlawyer responsible for permitted marketing functions.

Currency note

This opinion was issued in 1989, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here. The advertising and solicitation rules have been renumbered since this opinion; Rule 4-7.4(a) is now Rule 4-7.18(a), and Rules 4-7.1 through 4-7.7 are now Rules 4-7.11 through 4-7.22.

Common questions

Q: Can a firm hire a nonlawyer to solicit clients in person?

A: No. The opinion concluded that a nonlawyer may do only the solicitation the attorney himself may do, and the rules do not permit in-person or telephone solicitation by a lawyer or any agent of the lawyer; the lawyer is responsible for a nonlawyer's violation under Rule 4-5.3(c).

Q: Can the nonlawyer be paid a percentage of the fees they generate?

A: No. The opinion concluded that commissions tied to legal fees from business the nonlawyer brings in would violate Rule 4-5.4(a)(3), which forbids dividing a legal fee with a nonlawyer; a straight salary is permitted.

Q: What can the nonlawyer's business card say?

A: The opinion concluded that the card must clearly indicate nonlawyer status with a disclaimer such as "not a lawyer"; titles like "solicitor," "sales person," or "production manager" are misleading and not permitted, while "marketing director" is appropriate.

Background and rules framework

The opinion interprets the advertising and solicitation rules (then Rules 4-7.1 through 4-7.7, including 4-7.4(a) and 4-7.6(a); now Rules 4-7.11 through 4-7.22), Rule 4-5.3 (Model Rule 5.3) on the conduct of nonlawyer employees, and Rule 4-5.4(a)(3) (Model Rule 5.4) prohibiting fee division with a nonlawyer.

Citations and references

Rules of Professional Conduct:

• Fla. Rules 4-7.1, 4-7.4(a) (now 4-7.18(a)), 4-7.6(a) / Model Rules 7.1, 7.3 (advertising and solicitation)
• Fla. Rule 4-5.3 / Model Rule 5.3 (nonlawyer employees)
• Fla. Rule 4-5.4(a)(3) / Model Rule 5.4 (dividing a fee with a nonlawyer)

Other opinions cited:

• Fla. Ethics Op. 86-4

See also

• FL Bar Ethics Op. 92-3: Working Arrangement With a Public Adjuster
• FL Bar Ethics Op. 89-5: Paralegal Conducting a Real Estate Closing
• FL Bar Ethics Op. 18-1: Payments to For-Profit Qualifying Providers

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-89-4/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-89-4-2.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 89-4
August 15, 1989
Advisory ethics opinions are not binding.

Law firm may not allow its nonlawyer marketing director to solicit business for the firm in any manner forbidden to lawyers themselves. Nonlawyer marketing director may not be paid commissions representing a percentage of fees generated from business brought to the firm by him.

RPC: 4-5.3; 4-5.3(c); 4-5.4(a)(3); 4-7.1; 4-7.4(a) [See 4-7.18(a)]; 4-7.6(a); 4-7.1 through 4-7.7 [See 4-7.11 through 4-7.22]
Opinion: 86-4

The inquiring attorney's law firm wishes to hire a nonlawyer to solicit legal business for the firm. The lawyer expresses his view that while advertising is unprofessional and should not be allowed, straightforward solicitation should be permitted. In this regard the attorney presents several questions:

1. Can the firm hire a nonlawyer to solicit business?

2. Can the firm pay the nonlawyer either a straight salary, a salary plus commission or a straight commission?

3. Are there any new rules, regulations or guidelines that govern?

4. May the firm provide the nonlawyer with a business card indicating that the nonlawyer is a solicitor, a sales person, a production manager, or is involved in marketing?

5. An attorney may hire a nonlawyer to do only such solicitation as the attorney himself is permitted to do by the Rules of Professional Conduct. The rules do not permit in-person solicitation or telephone solicitation by a lawyer or by any agent of the lawyer. The prohibition against in-person and telephone solicitation is set forth in Rule 4-7.4(a) [See current Rule 4-7.18(a)]. If a lawyer orders a nonlawyer employee to engage in conduct that would be a violation of the rules if engaged in by the lawyer, or if the lawyer ratifies such misconduct, under Rule 4-5.3(c) the lawyer is held responsible for the misconduct. All that the rules would allow a nonlawyer "solicitor" to do on behalf of the inquiring attorney's firm is manage whatever marketing activities the firm may wish to undertake in conformance with Rules 4-7.1 through 4-7.7 [See current Rules 4-7.11 through 4-7.22] of the Rules of Professional Conduct. These include advertising in public media and through direct mail campaigns.

6. A nonlawyer hired to engage in permissible marketing activities on behalf of a lawyer may be paid a straight salary. If commissions would be tied to legal fees derived from business brought to the firm by the nonlawyer's efforts, payment of those commissions would constitute a violation of Rule 4-5.4(a)(3), which forbids a lawyer to divide a legal fee with a nonlawyer.

7. The rules that govern are those identified above: Rules 4-7.1 through 4-7.7 (advertising and solicitation) [See current Rules 4-7.11 through 4-7.22]; Rule 4-5.3 (conduct of nonlawyer employees); and Rule 4-5.4(a)(3) (dividing a legal fee with a nonlawyer).

8. It is permissible for nonlawyer employees to be issued business cards that clearly indicate their nonlawyer status. This Committee so ruled in Opinion 86-4. Thus the nonlawyer "solicitor's" business cards must carry a disclaimer such as "not a member of the Bar" or "not a lawyer." Neither of the titles suggested by the inquiring attorney—"solicitor," "sales person," "production manager"—is permissible for the nonlawyer's business card. The first two refer to activities that the attorney cannot ethically permit the nonlawyer to do, and thus are misleading in violation of Rule 4-7.1 and 4-7.6(a) [See current Rule 4-7.13]. Neither permissible advertising nor impermissible solicitation is synonymous with production management, so the third term also is misleading. "Marketing director" would be an appropriate title for a nonlawyer employee responsible for permitted marketing functions.