Can a lawyer send fee-schedule information to a registered group legal-services plan without committing improper solicitation?

Plain-English summary

The New Jersey State Bar Association asked whether a lawyer could provide the fee information permitted under DR 2-101(B)(5) to a group or organization formed and registered in compliance with DR 2-103(D)(4)(a) through (g), the rules governing organizations that recommend, furnish, or pay for legal services to members or beneficiaries. The question resembled one the Committee had answered in Opinion 457, but with a substantially modified factual framework.

The Committee distinguished its earlier Opinion 457. There, the proposed mailings had been aimed at encouraging the formation of groups so members could take advantage of a lawyer's fee reductions, which the Committee had treated as improper solicitation. Here, the inquiry concerned communicating fee information to a group that was already formed and registered, which the Committee treated as advertising rather than solicitation.

The Committee traced the change to Bates v. State Bar of Arizona, 433 U.S. 350 (1977), after which the disciplinary rules were amended to permit fee-schedule advertising under certain conditions, and to its own Opinion 468, which had approved direct-mail advertising addressed generally to the public so long as DR 2-101 was met. Because the rule permitted statements of fees that would be charged, the Committee saw no impropriety in a lawyer's addressing such a letter to organizations properly formed and registered under DR 2-103(D), provided DR 2-101(B)(5) was complied with.

Currency note

This opinion was issued in 1981, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. The advertising and solicitation rules the opinion applied (DR 2-101 and DR 2-103) have since been replaced by RPC 7.2 and 7.3, and Opinion 488 was itself relaxed by Opinion 505. Treat this page as historical context, not current guidance.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: Could a lawyer send fee information to a group legal-services plan?

A: Yes, on these facts. The opinion concluded that furnishing the DR 2-101(B)(5) fee information to a group properly formed and registered under DR 2-103(D)(4) was proper advertising.

Q: Why was this proper when Opinion 457 found improper solicitation?

A: The opinion distinguished Opinion 457, where the mailings were designed to encourage forming groups to take advantage of fee reductions; here the plan was already formed and registered, so the communication was advertising, not solicitation.

Q: What change in the law did the opinion rely on?

A: The opinion pointed to Bates v. State Bar of Arizona (1977), after which the rules were amended to permit fee-schedule advertising, and to its Opinion 468 approving general direct-mail advertising that meets DR 2-101.

Background and rules framework

The opinion applied DR 2-101 (advertising, including fee schedules under subsection (B)(5)) and DR 2-103 (recommendation of professional employment, including subsection (D)(4) governing registered legal-services organizations). In current New Jersey terms the advertising rule maps onto RPC 7.2 and the solicitation rule onto RPC 7.3. The Committee's line between advertising and solicitation turned on whether the communication reached an already-registered plan or instead sought to generate the formation of fee-driven groups.

Citations and references

Rules of Professional Conduct:

• MR 7.2 / NJ RPC 7.2 (advertising); decided under former DR 2-101
• MR 7.3 / NJ RPC 7.3 (solicitation); decided under former DR 2-103

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (commercial-speech protection for certain lawyer advertising)

Other opinions cited:

• NJ ACPE Opinion 457, 106 N.J.L.J. 98 (1980) (mailings to encourage forming fee-reduction groups were improper solicitation)
• NJ ACPE Opinion 468, 107 N.J.L.J. 10 (1981) (direct-mail advertising to the public permitted if DR 2-101 met)

See also

• NJ ACPE Op. 505: Advertising of Prepaid Legal Services (relaxes Op. 488)
• NJ ACPE Op. 503: Advertising Specialization and Reduced Fees
• NJ ACPE Op. 548: Lawyer Free Public Seminars and Newspaper Advertising

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp488-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

108 N.J.L.J. 523, December 3, 1981

OPINION 488

Furnishing Fee Information to Organization Providing Legal Services to Members

In January 1980 a request for an opinion was submitted by an attorney. It dealt with the advertisement of fees and the solicitation of business which are covered by DR 2-101 et seq. It was the view of the Committee expressed in Opinion 457, 106 N.J.L.J. 98 (1980), that the proposed advertising was designed to encourage the formation of groups for the purpose of taking advantage of the fee reductions proposed by the attorney and was, therefore, improper solicitation rather than permitted advertising.

We have now received an inquiry from the New Jersey State Bar Association which poses essentially the same questions but with a substantially modified factual framework. We believe that the proposal from the Bar Association falls under the heading of advertising rather than solicitation and, therefore, is proper. The Association asks whether a lawyer may provide the information permitted under DR 2-101(B)(5) to a group or organization which has been formed and registered in compliance with the requirements of DR 2-103(D)(4)(a) through (g) which details the requirements for the formation and registration with the Supreme Court of organizations that recommend, furnish or pay for legal services to its members or beneficiaries. The previous inquiry was directed toward the formation of such organizations and the Committee therefore concluded that the proposed mailings were improper solicitation.

After the United States Supreme Court concluded in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), that certain advertising was permissible, disciplinary rules both of the American Bar Association and of the various states were amended to comply with the decision. New Jersey's version of these new rules appears for the most part in DR 2-101 et seq. Included in these rules as a result of the Bates decision is a provision permitting the advertisement of fee schedules under certain circumstances.

In our Opinion 468, 107 N.J.L.J. 10 (1981), we approved direct mail advertising by lawyers addressed generally to the public provided the requirements of DR 2-101 are met. Since this rule permits the statement of fees which would be charged, we see no propriety in the lawyer's addressing a letter to organizations properly formed and registered under DR 2-103(D). So long as the provisions of DR 2-101(B)(5) are complied with, we are of the opinion such a mailing constitutes proper advertising and not improper solicitation.