Can a law firm hire a marketing company to distribute ads, screen responses, and be paid a percentage of fees from clients it brings in?

Plain-English summary

The opinion addresses a firm that wants to retain a nonlawyer marketing company to run radio, television, and printed advertising telling the public about common claims and inviting responses, then to screen those responses and forward promising ones to the firm. The firm proposed paying the company a percentage of fees it ultimately collected from referred clients, and asked whether nonlawyer firm employees could instead do the screening.

The Committee frames the firm's responsibility through Rule 5.3: a lawyer who orders or ratifies a retained nonlawyer's conduct is responsible for it, so the firm may not have the marketing company do anything the firm itself could not do. On distribution, Rule 7.2 permits advertising through public media and written communication, and Rule 7.3 allows mailed letters and circulars labeled as advertising material; the flyers may therefore be mailed, posted, and left door-to-door, even targeted to likely claimants. But door-to-door distribution may not include personal contact, because the exception for letters and circulars does not lift the general bar on in-person solicitation "directly or through a representative" (citing Ohralik and related Supreme Court advertising cases). Public appearances before civic, religious, and similar groups are permitted under Rule 7.3(a)(3), so long as no individualized legal advice or direct pitch for retention occurs.

On screening, the opinion concludes that deciding whether a respondent has a viable claim is the practice of law, so letting the marketing company perform merit screening would make the firm complicit in unauthorized practice under Rule 5.5(b); the company may only reject responses plainly outside the advertised field and must tell those respondents no lawyer reviewed the merits. For the same reason, the firm may not delegate merit screening to its own nonlawyer employees. Finally, the opinion holds that paying the marketing company a percentage of collected legal fees is barred by Rule 5.4(a) (no fee sharing with nonlawyers) and Rule 7.2(b) (no giving value for recommending the lawyer's services beyond the reasonable cost of advertising), and that the Rule 5.4(a)(3) employee-plan exception does not apply to an outside vendor.

Currency note

This opinion was issued in 2006, before Illinois adopted its current Rules of Professional Conduct effective January 1, 2010. The cited rules use the pre-2010 numbering; the opinion was affirmed by the ISBA Board of Governors in January 2010 by reference to 2010 Rules 1.6, 5.3, 5.4, 5.5, 7.1, 7.2, 7.3, and 7.4. The 2010 revisions and later amendments restructured the Illinois advertising and solicitation rules. Verify against current rules before relying on any specific provision cited here.

In practice

Under the Illinois rules as they stood at the time, the opinion permits a marketing company to distribute a firm's advertising by mail, on bulletin boards, and door-to-door without personal contact, and permits firm lawyers or marketing representatives to speak before civic groups without soliciting retention. It prohibits the marketing company (or the firm's nonlawyer employees) from screening responses for legal merit, and prohibits paying the company a percentage of legal fees collected from referred clients. The firm remains responsible under Rule 5.3 for conduct it orders or ratifies.

Common questions

Q: Can a law firm hire an outside marketing company to advertise and distribute flyers?

A: Yes. The opinion concludes the company may mail, post, and hand out flyers door-to-door, and may target likely claimants, so long as it does not make personal contact with recipients.

Q: Can the marketing company screen which responses have a good claim?

A: No. The opinion concludes evaluating whether a respondent has a claim is the practice of law, so such screening would aid the unauthorized practice of law under Rule 5.5(b); the company may only reject responses plainly outside the advertised field.

Q: Can the firm pay the marketing company a percentage of the fees from referred clients?

A: No. The opinion concludes that paying a share of legal fees violates Rule 5.4(a) and Rule 7.2(b), and that the employee-compensation-plan exception does not reach an outside vendor.

Q: Can nonlawyer firm employees do the merit screening instead?

A: No. The opinion concludes a lawyer may not delegate the determination of whether a claim exists to a nonlawyer, because it requires legal knowledge and skill.

Background and rules framework

The opinion interprets Illinois Rule 5.3 (responsibility for nonlawyer assistants), Rule 5.4(a) (no fee sharing with nonlawyers), Rule 5.5(b) (assisting unauthorized practice), Rule 7.2 (advertising and the bar on giving value for recommendations), and Rule 7.3 (direct contact and solicitation, including the labeled-circular and civic-group exceptions). The corresponding Model Rules are MR 5.3, MR 5.4, MR 5.5, MR 7.2, and MR 7.3. The opinion relies on Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978), and related Supreme Court advertising decisions.

Citations and references

Rules of Professional Conduct:

• MR 5.3 (nonlawyer assistants) / IL Rule 5.3
• MR 5.4 (professional independence; fee sharing) / IL Rule 5.4(a)
• MR 5.5 (unauthorized practice) / IL Rule 5.5(b)
• MR 7.2 (advertising) / IL Rule 7.2, 7.2(b)
• MR 7.3 (solicitation of clients) / IL Rule 7.3

Cases:

• Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978), in-person solicitation by lawyers and their agents
• Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995); Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985)

Other opinions cited:

• ISBA Op. 01-05; ISBA Op. 99-2

See also

• ISBA Ethics Op. 10-02: Reciprocal Referral Agreements
• ISBA Ethics Op. 25-02: For-Profit Client Referral Services
• ISBA Ethics Op. 12-03: Networking Group With Nonlawyer Professionals

Source

• Landing page: https://www.isba.org/ethics/opinions/0602