Can a law firm team up with a health-care organization to market and run seminars on advance directives and then prepare them?

Plain-English summary

A general-practice firm proposed an "Advanced Directive Services" arrangement with a health-care organization (HCO). The HCO would help design, print, and distribute brochures identifying the firm as the sole legal-services provider, co-present seminars explaining the general need for advance directives (with all legal issues addressed by the firm), and help individuals complete tear-out applications, which would go to the firm with its standard fee. The firm would then prepare each advance directive and meet individually with each person to verify terms, explain implications, and witness execution.

The opinion concluded that because health-care providers are statutorily required to give patients information about advance directives, the HCO's participation furthered a public mandate and could be distinguished from a bank assisting in estate planning (Opinion 84-1), though the HCO had to take care that its explanations did not conflict with the client's interest. It concluded that the arrangement could be found to be a partnership with a nonlawyer depending on how fees were handled, which would violate Rule 5.4(b), but that so long as the firm performed all legal services the HCO would not be engaged in unauthorized practice and the firm would not be aiding it under Rule 5.5(b).

On solicitation, the opinion concluded that the contact came through the HCO's health-care services and seminar referrals, which is permissible under Rule 7.3 so long as the HCO does not state or imply that the firm is the only firm that can provide the service. It concluded that brochures bearing the firm's name are advertising subject to Rule 7.2(a)'s record-keeping and lawyer-identification requirements. Finally, it concluded that any fee must be for the firm's services alone, the HCO's compensation must be independent of the firm's fees, and (per Opinion 90-19) payment calculated on the number of clients secured would violate Rule 7.2(b); the firm may, however, pay the HCO the cost of preparing the materials.

Currency note

This opinion was issued in 1994, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (referring to Rules 5.4(b), 7.2(a)-(c), and 7.3), while noting the specific standards referenced may differ from the 2010 Rules. 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 or requirement mentioned here.

Common questions

Q: Can a firm co-market legal seminars with a nonlawyer organization?

A: The opinion concluded a firm may do so if it performs all legal services and the organization does not imply the firm is the only provider; the firm does not aid unauthorized practice so long as it does the legal work.

Q: How may the firm pay the marketing organization?

A: The opinion concluded the firm may reimburse the cost of preparing materials but may not pay based on the number of clients obtained, which would be an improper referral payment under Rule 7.2(b).

Q: When would such an arrangement become an improper partnership?

A: The opinion concluded that, depending on how fees are handled, the arrangement could be a partnership with a nonlawyer in the practice of law, which Rule 5.4(b) prohibits.

Background and rules framework

The opinion interpreted Rule 5.4(b) (no partnership with a nonlawyer for the practice of law), Rule 5.5(b) (aiding unauthorized practice), Rule 7.3 (solicitation), and Rule 7.2(a) and (b) (advertising record-keeping and the bar on paying for recommendations) (Model Rules 5.4, 5.5, 7.3, 7.2).

Citations and references

Rules of Professional Conduct:

• Model Rule 5.4 (professional independence) / Illinois Rule 5.4(b)
• Model Rule 5.5 (unauthorized practice) / Illinois Rule 5.5(b)
• Model Rule 7.2 / Illinois Rule 7.2(a), (b); Model Rule 7.3 / Illinois Rule 7.3(a)

Other opinions cited:

• ISBA Opinion No. 84-1: bankers assisting in estate planning, distinguished
• ISBA Opinion No. 90-19: no payment to a referring financial planner to initiate client contact

See also

• ISBA Ethics Op. 96-02: Third-Party Solicitation on Behalf of a Lawyer
• ISBA Ethics Op. 97-04: Fee for Referring Clients to Nonlawyer Professionals
• ISBA Ethics Op. 93-11: Lawyer Hired and Paid by a Third Party

Source

• Landing page: https://www.isba.org/ethics/opinions/9404