May a lawyer pay a marketing company that runs seminars, and how the company is compensated, when attendees also get a private consultation with the lawyer?

Plain-English summary

A marketing organization recruited financial planners and attorneys to conduct workshops and seminars, arranging the sessions and handling publicity. As part of a session, the attorney provided one hour of private consultation to each attendee, with the marketing organization setting up the appointments and gathering attendee information for the attorney. Two compensation structures were presented: in one, the attorney paid the organization based solely on the number of attendees; in the other, the attorney paid based on the number of attendees who both attended and made an appointment with the attorney, regardless of whether the attorney was actually retained.

The Commission analyzed two rules. Rule 3.3(e) (no sharing of legal fees with a non-lawyer) did not apply to either arrangement, because the organization's compensation was not based on fees the lawyer collected; it was paid regardless of whether the lawyer rendered services, like any media advertiser paid by audience size. The harder question was Rule 3.9(f)(2), which bars compensating a person or organization to recommend or secure employment, except payment for permitted public communication or the usual fees of a bar-association referral service. The Commission concluded both arrangements fall within the rule's general proscription, because the enterprise is intended to encourage consideration of employing the lawyer and the organization's compensation is tied to the success of securing private lawyer-attendee contacts; though more sophisticated than ambulance chasing, the result is the same.

Turning to the exceptions, the Commission found the referral-service exception inapplicable (the organization had no bar-association connection). But the public-communication exception applied to the first arrangement: paying based on audience size is paying for a forum for public communication, and the free consultations offered to that audience make no difference because the organization is not paid for that contact. The second arrangement could not be so described, because the organization was paid based at least in part on the number of private contacts. In summary, Rule 3.9(f)(2) is violated if the organization is compensated based on the number of private consultations, but not if it is compensated solely on the number of attendees from its public communication. The Commission described the distinction as subtle but principled, balancing protection against "surreptitious private client recruitment" against the encouragement of public communication about legal matters.

Currency note

This opinion was issued in 1992, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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: Can a lawyer pay a marketing company to run seminars that attract potential clients?

A: The opinion concluded yes when the payment is based on the number of attendees, treating it as payment for a permitted public communication under Rule 3.9(f)(2).

Q: What compensation structure crosses the line?

A: The opinion held that paying the organization based on the number of private consultations the lawyer books violates Rule 3.9(f)(2), because the payment is tied to securing private client contacts rather than public communication.

Q: Did paying the marketer count as sharing legal fees with a non-lawyer?

A: The opinion concluded no. Because the organization's compensation was not based on fees the lawyer collected, Rule 3.3(e) (fee-sharing with a non-lawyer) did not apply to either arrangement.

Q: Why does offering free consultations to attendees not change the first arrangement?

A: The opinion reasoned that the organization is not paid for the private contact in the first arrangement; the lawyer pays only for the opportunity to communicate with an audience publicly.

Background and rules framework

The opinion interprets Maine Bar Rule 3.9(f)(2), which bars compensating a person or organization to recommend or secure employment, except payment for permitted public communication or the usual fees of a bar-association referral service, and Rule 3.3(e), which bars sharing legal fees with a non-lawyer. It also references Rule 3.9(f)(1) (solicitation involving undue influence). These correspond to ABA Model Rule 7.2 (advertising; payment for recommending a lawyer) and Model Rule 5.4 (sharing fees with non-lawyers).

Citations and references

Rules of Professional Conduct:

• Model Rule 7.2 (advertising; payment for recommendations); Model Rule 5.4 (sharing fees with non-lawyers)
• Maine Bar Rule 3.9(f)(2), 3.9(f)(1), 3.3(e)

Other opinions cited:

• Maine Professional Ethics Commission Op. 87: bar-association referral service exception

See also

• Maine Ethics Op. 135: Joining a Paid Directory Network
• Maine Ethics Op. 133: Referral Service Fee Remittances
• ABA Formal Op. 501: Solicitation of Clients

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89849

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: April 23, 1992

Facts

A Marketing Organization obtains financial planners and attorneys to conduct workshops and seminars. Marketing Organization arranges the sessions through various organizations and conducts the publicity. An attorney and financial planner conduct a workshop/seminar. Part of the session includes the attorney providing one hour of consultant time to each attendee in private. Marketing Organization sets up the private appointment and acquires information about the attendees that is provided the attorney for the consultation.

Compensation from the attorney to Marketing Organization is calculated, in one instance, solely upon the number of attendees at the session; and, in another instance, upon the number of attendees who attend plus make the appointment with the attorney, regardless of whether the attorney is thereafter actually retained for any services.

Question

Do either of the above compensation arrangements with Marketing Organization violate any provision of the Bar Rules?

Opinion

Two Bar Rules could arguably apply to the above arrangements. The first is Rule 3.3(e) which states: "A lawyer or law firm shall not share legal fees with a non-lawyer [subject to exceptions not applicable to this discussion]." However, that Rule does not apply to either of the arrangements described above because the compensation to Marketing Organization is not based upon fees the lawyer collects as a result of the session. Marketing Organization is to be compensated whether or not the lawyer renders any services to these attendees; and its compensation is not based upon fees charged by the lawyer to the attendees. Its compensation is no different from compensation paid any media advertiser based upon the size of the audience it reaches.

A more difficult issue is presented by Rule 3.9(f)(2) which reads as follows:

A lawyer shall not compensate, or give anything of value to, a person or organization to recommend or secure employment by a client, or as a reward for having made a recommendation resulting in employment by a client, except that a lawyer may pay for public communication permitted by these rules and may pay the usual and reasonable fees or dues charged by a lawyer referral service operated, sponsored, or approved by a bar association.

The initial question is whether the arrangements fall within the general proscription of the Rule. The Commission concludes that they do. While there is presumably no explicit recommendation of employment being made by Marketing Organization in its advertising to the attendees, one cannot ignore that the entire enterprise is intended to suggest and encourage consideration of such employment; and Marketing Organization's compensation is directly based upon the success of securing private communications between the lawyer and the attendees. While the technique is certainly more sophisticated than the archetypical ambulance chasing and lacks the risks of undue influence that would run afoul of Rule 3.9(f)(1), the result is the same: the attendees are encouraged to avail themselves of the "consultations," and Marketing Organization's compensation is based in part on the number of those "consultations."

The next question is whether either of the exceptions to the general proscription of Rule 3.9(f)(2) applies. The last exception does not. The Marketing Organization is not "a lawyer referral service operated, sponsored or approved by a bar association." Nothing in the facts reveals any relationship whatever to any bar association. See Opinion No. 87.

However, with respect to the first compensation arrangement described above, the Commission concludes that the other exception set forth in Rule 3.9(f)(2) applies. The Marketing Organization is providing the lawyer a forum for public communication for which the lawyer pays based on the size of the public the Marketing Organization is able to provide for the session. The fact that the lawyer may offer to that public free consultation in addition to the public communication makes no difference since the Marketing Organization is not being paid by the attorney for the latter contact. The lawyer is merely paying for the opportunity to communicate with an audience publicly.

However, the second compensation arrangement cannot be similarly described. Marketing Organization is being paid based (at least in part) upon the number of private contacts the lawyer makes as a result of its efforts and not solely for the public communication.

In summary, Rule 3.9(f)(2) is violated if Marketing Organization is compensated on the basis of the number of private consultations that come to the lawyer. If its compensation is based solely upon the number of attendees attending the workshop/seminar as a result of its public communication, then no violation occurs. The distinction is subtle, as the above facts reveal, but it achieves a principled balance between the need to protect the public from "surreptitious private client recruitment" (see Advisory Committee's Notes to Rule 3.9(f)) and the encouragement of public communication of legal matters, whether or not motivated by a desire for employment.