In Kentucky, may a lawyer pay to put their name and discount coupons for legal services in welcome packages distributed to new homeowners?

Plain-English summary

A lawyer asked whether they could pay to participate in a new-homeowner welcome service that distributes welcome packages containing address books listing the lawyer's name and contact information, along with discount coupons or gift certificates (for example, a coupon for a no-charge initial consultation or "$50 good toward your legal fees"). The Committee answered no.

The opinion read Rule 7.30 to bar a lawyer from in-person contact or solicitation of professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, and Rule 8.3 to make it misconduct to violate the rules through the acts of another. Drawing on ABA/BNA authority, the Committee noted that "in person" includes contacts made through agents, and that a state may categorically ban in-person solicitation for profit. It cited Shapero v. KBA, 486 U.S. 466 (1988), which permitted targeted direct-mail solicitation, and Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978), which upheld bans on face-to-face solicitation because of its greater risk of abuse. The Board concluded the welcome-package coupons involved in-person contact or solicitation by an agent for pecuniary gain and were therefore prohibited.

Currency note

This opinion was issued in 1994 and predates the Kentucky Supreme Court's substantial revisions to the advertising and solicitation rules; the Kentucky Bar Association notes that Rule 7.30 was later renumbered to Rule 7.09 and Rule 8.3 to Rule 8.4 (SCR 3.130). Lawyers should consult the current version of the rules and the Attorneys' Advertising Commission Regulations before relying on this opinion. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer pay to include fee coupons in a homeowner welcome package?

A: No. The Board concluded the arrangement was in-person solicitation by an agent for pecuniary gain, prohibited by Rules 7.30 and 8.3.

Q: Did routing the coupons through a third-party service avoid the rule?

A: No. The opinion treated contacts made through an agent as in-person solicitation, and Rule 8.3 reaches conduct accomplished through the acts of another.

Q: How did the opinion square this with the right to direct-mail advertising?

A: It cited Shapero, which permits targeted direct mail, but relied on Ohralik for the point that states may categorically ban in-person solicitation for profit because of its risk of abuse, and classified the welcome-package contact as the latter.

Background and rules framework

The opinion interprets KRPC 7.30 (prohibition on in-person solicitation for pecuniary gain; later renumbered 7.09) and KRPC 8.3 (misconduct, including acting through another; later renumbered 8.4), corresponding to Model Rules 7.3 and 8.4. It frames the question around the mode of communication, the factor the cited Supreme Court cases identify as controlling.

Citations and references

Rules of Professional Conduct:

• MR 7.3 / KRPC 7.30 (solicitation of clients; in-person contact)
• MR 8.4 / KRPC 8.3 (misconduct, including violating the rules through the acts of another)

Cases:

• Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988), targeted direct-mail solicitation permitted
• Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978), categorical ban on in-person solicitation upheld

See also

• KBA Ethics Op. E-367: Gifts to Realtors for Referrals
• KBA Ethics Op. E-385: Legal-Aid Referrals From Service Organizations
• KBA Ethics Op. E-388: Advertising Fee Donations to Client Charities

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-369.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-369
Issued: July 1994

Since the adoption of the Rules of Professional Conduct in 1990, the Kentucky Supreme
Court has made substantial revisions to rules governing the advertisement of legal
services. For example, this opinion refers to Rule 7.30, which was amended and
renumbered to Rule 7.09, and to Rule 8.3, which was renumbered to Rule 8.4. Lawyers
should consult the current version of the rules and comments, SCR 3.130 (available at
http://www.kybar.org) and the Attorneys' Advertising Commission Regulations before
relying on this opinion.

Question:

May a lawyer pay to participate in a new home owner service that distributes
welcoming packages to new families in a community, which contain address
books in which the attorney's name, address and telephone number are listed,
along with discount coupons or gift certificates - for example, for a coupon for a
"no-charge" initial consultation or a coupon for "$50 good toward your legal
fees."

Answer:

No.

References:

Kentucky Rules of Professional Conduct 7.30 and 8.3.
OPINION

Rule 7.30 provides that "[a] lawyer shall not in-person...contact or solicit professional
employment from a prospective client with whom the lawyer has no family or direct prior
professional employment." Rule 8.3 provides that it is professional misconduct for a lawyer to
"violate or attempt to violate the rules of professional conduct...through the acts of another...."
We note that the general rule regarding in-person solicitation is "that a lawyer may not
solicit legal business from potential clients to whom [the lawyer] is unrelated or with whom [the
lawyer] has no prior professional relationship when a significant reason for the solicitation is the
lawyer's pecuniary gain"; and that "'[i]n person' means face-to-face or by live telephone...[and
it]... also includes such contacts through agents." See ABA/BNA Law.Man.Prof.Con. 81-2001.
It is the opinion of the Board that the conduct involves in person contact or solicitation by
an agent, for pecuniary gain which is prohibited by Rules 7.30 and 8.3. In Shapero v. KBA, 486
U.S. 466 (1988) the U. S. Supreme Court ruled that lawyers may not be prohibited from
engaging in targeted direct mail solicitation, but "acknowledged the state's interest in preventing
abuses in lawyer solicitation and noted that in assessing the potential for these abuses, the focus
must be on the mode of communication. ... The Court reiterated that states may categorically ban
in-person solicitation by lawyers for profit in accordance with its holding in Ohralick v. Ohio
State Bar Association, 436 U.S. 447 (1978), because the mode of communication in face-to-face
solicitation presents great risk of abuse and restrictions short of a complete ban would be useless
as in-person solicitation is conducted out of public view." ABA/BNA Law.Man.Prof.Con.
81:2008-2009.
For the reasons stated we answer the question in the negative.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky
Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor
rule). The Rule provides that formal opinions are advisory only.