Can a financial services firm send its clients letters offering a law firm's services at reduced rates as a way to bring the law firm business?
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This page answers the general question as of 1987. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A law firm asked whether it could let a partner in a financial services and insurance agency (the firm's client) write to the agency's own clients telling them he had arranged for the firm to do estate-planning work for them at reduced rates. The firm said the idea came from its client, the letter's content was accurate, and the firm had not obligated itself to refer anyone back to the agency.
The committee read DR 2-103(E), as recently amended, to prohibit the arrangement. That rule provides that "A lawyer shall not pay any person or organization to solicit professional employment for the lawyer from a prospective client." The committee treated the offer of reduced rates to the agency's customers as a benefit conferred on the agency, helping it get business, and therefore a "payment" within the meaning of DR 2-103(E). It pointed to the SJC advertising committee's own commentary that the practical effect of the limitation would be to confine most solicitation to that performed by the lawyer or firm itself.
The committee also addressed a feature of the rule it wanted to flag for the bar: DR 2-103(E) by its terms bars only paid solicitation, which might seem to allow all unpaid solicitation induced by a lawyer. The committee said that is not so. Unpaid solicitation by a third party is permissible only where the rules would let the lawyer solicit directly. Where a lawyer may not solicit, the lawyer may not induce another to solicit even without payment, because DR 1-102(A)(2) bars circumventing a Disciplinary Rule through the actions of another, and that prohibition runs throughout the rules, including DR 2-103.
Currency note
This opinion was issued in 1987, before Massachusetts's adoption of the 2015 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 Treat this page as historical context, not current guidance.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.
Common questions
Q: Does it count as paid solicitation if no money changes hands?
A: Per the opinion, yes, where the lawyer confers a benefit. The committee treated the reduced-rate offer that helped the agency get business as a "payment" within DR 2-103(E), even though the firm sent the agency no money.
Q: Can a lawyer have a third party solicit for free in situations where the lawyer could not solicit directly?
A: No. The committee said unpaid third-party solicitation is allowed only where the lawyer could solicit directly; otherwise DR 1-102(A)(2) (circumventing a rule through another's acts) bars inducing the third party to do it.
Q: Did it matter that the agency, not the firm, came up with the idea?
A: The committee did not treat that as decisive. It focused on whether the arrangement amounted to a third party soliciting business for the firm in exchange for a benefit, which it found here.
Background and rules framework
The opinion applied DR 2-103(E) (no paying a person or organization to solicit employment for the lawyer) and DR 1-102(A)(2) (no circumventing a Disciplinary Rule through the actions of another). Those correspond today to Model Rule 7.2 (compensating others for recommendations) and Model Rule 7.3 (solicitation of clients), with the circumvention principle now reflected in Model Rule 8.4(a). The committee read DR 2-103(E) in light of the SJC advertising committee's commentary that it was meant to keep most solicitation within the lawyer or firm.
Citations and references
Rules of Professional Conduct:
- DR 2-103(E) / Model Rule 7.2 and 7.3 (paid solicitation; solicitation of clients)
- DR 1-102(A)(2) / Model Rule 8.4(a) (circumventing a rule through the acts of another)
See also
- MA Bar Ethics Op. 88-3: Discounted fees for union members as protected group legal services
- MA Bar Ethics Op. 86-3: An educational seminar for clients and non-clients is not solicitation
Source
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