Can a lawyer who gives a legal seminar hand out firm materials and meet with attendees afterward to discuss their cases?

Plain-English summary

A lawyer asked the Board how the in-person solicitation rule, Prof. Cond. R. 7.3, applies to lawyers presenting at legal information seminars. The Board answered three questions, drawing on its prior opinions under the former Code (87-007, 99-5, 94-13) and on opinions from other Model Rule states.

On seminar materials, the Board concluded a lawyer may present an informational seminar to prospective clients and may make firm brochures and information available at a display near the exit, so attendees can take them or walk past, provided neither the lawyer nor the lawyer's representatives personally hand them out and the materials satisfy Rules 7.1, 7.2, and 7.3. On meeting attendees, the Board concluded the lawyer may not stay after the seminar to discuss attendees' personal legal needs, even if they signed up in advance; instead the lawyer must direct interested attendees to call the office for an appointment or to seek counsel of their choice, because the lawyer cannot be the one to initiate contact. A lawyer may accept employment that results from a seminar, but the prospective client must initiate the contact.

The Board recognized a pro bono exception: legal aid, bar association, and law school clinic programs may offer individualized brief advice at the same time as a seminar, because the potential for abuse and overreaching that Rule 7.3 guards against is largely absent when volunteer lawyers provide free help to people who could not otherwise afford a lawyer. On the third question, the Board concluded that under Prof. Cond. R. 1.13 the organization, not its employees, is the client, so no "prior professional relationship" under Rule 7.3(a) exists with the employees; a lawyer for an organizational client therefore may not make an offer of services to its employees who attend a seminar, though general statements about availability and contact information are permitted.

In practice

The opinion holds that, under the Ohio rules as they stood at the time, a lawyer presenting a paid-practice seminar may leave (but not personally distribute) compliant firm materials at the exit, and may not solicit or give individualized advice to attendees in person; interested attendees must initiate contact with the firm. Per the opinion, pro bono programs may provide brief individualized advice alongside a seminar, and employees of an organizational client are prospective clients to whom the lawyer may not make an in-person offer of services.

Common questions

Q: Can a lawyer hand out firm brochures to people at a seminar?

A: The opinion concluded the lawyer may make materials available at a display near the exit, but neither the lawyer nor the lawyer's representatives may personally distribute them.

Q: Can the lawyer stay after the seminar to answer attendees' specific legal questions?

A: The opinion concluded no; the lawyer may not meet one-on-one to discuss attendees' personal legal needs, even if they signed up in advance, and should tell them to contact the office or other counsel.

Q: Is there an exception for free legal clinics?

A: The opinion concluded yes; pro bono lawyers may provide individualized brief advice contemporaneously with a seminar, because the risk of overreaching Rule 7.3 addresses is largely absent.

Q: If the firm represents a company, can its lawyer solicit the company's employees at a seminar?

A: The opinion concluded no; under Prof. Cond. R. 1.13 the company is the client, the employees are prospective clients with no "prior professional relationship," so Rule 7.3 bars an in-person offer of services to them.

Background and rules framework

The opinion interprets Ohio Prof. Cond. R. 7.3 (direct contact with prospective clients), 7.1 (false or misleading communications), and 7.2 (advertising) (Model Rules 7.1, 7.2, 7.3), and applies Prof. Cond. R. 1.13 (organization as client) (Model Rule 1.13) to the question of whether an organizational client's employees fall within the Rule 7.3(a) "prior professional relationship" exception.

Citations and references

Rules of Professional Conduct:

• Ohio Prof. Cond. R. 7.3 (direct contact with prospective clients) (Model Rule 7.3)
• Ohio Prof. Cond. R. 7.1 (false, misleading, or nonverifiable communications) (Model Rule 7.1)
• Ohio Prof. Cond. R. 7.2 (advertising) (Model Rule 7.2)
• Ohio Prof. Cond. R. 1.13 (organization as client) (Model Rule 1.13)

Other opinions cited:

• Ohio BPC Op. 94-13: legal seminars and resulting employment
• Ohio BPC Op. 99-5: dissemination of law firm brochures
• Ohio BPC Op. 2013-2: direct contact with prospective clients by text message
• Mich. Ethics Op. RI-99 (1999); N.Y. State Bar Op. 918 (2012): seminars and solicitation

See also

• Ohio BPC Op. 2013-002: Text-Message Solicitation of Prospective Clients
• Ohio BPC Op. 1987-007: Legal Seminars: Advertising and Conduct

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_15-002.pdf

Original opinion text

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

BOARD OF PROFESSIONAL CONDUCT
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.supremecourt.ohio.gov

PAUL M. DE MARCO RICHARD A. DOVE
CHAIR DIRECTOR
WILLIAM J. NOVAK D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL

                                                                                   HEIDI WAGNER DORN
                                                                                         COUNSEL

                                        OPINION 2015-2
                                      Issued August 7, 2015

              Direct In-person Solicitation of Prospective Clients at Seminars

SYLLABUS: A lawyer may present a legal seminar to prospective clients and may
make brochures and law firm information available near the exit of the seminar. A
lawyer may not meet contemporaneously with prospective clients who attend the legal
seminar to answer legal questions, even if the attendees sign up to do so in advance.
An exception exists for lawyers providing pro bono legal services. Finally, the “prior
professional relationship” exception under Prof. Cond. R. 7.3(a) does not apply to
prospective clients who are employees of an existing organizational client of the
presenting lawyer.

QUESTIONS PRESENTED:
1) May a lawyer present a legal seminar to prospective clients and provide
brochures and folders with firm information at the entrance or exit of the
seminar?

2) May a lawyer stay after a seminar to answer follow-up questions of attendees or
meet with attendees who sign-up to meet with a lawyer in advance of the
seminar?

3) May a lawyer, during the course of presenting at a firm-sponsored seminar,
make an offer of services to attendees, all of whom are employees of the existing
organizational client of the firm? Does a “prior professional relationship” exist
in that situation?

OPINION: A lawyer seeks the Board’s guidance regarding direct in-person solicitation
at legal information seminars. Specifically, the lawyer asks whether certain practices
Op. 2015-2 2

comply with the in-person solicitation and written marketing rules under Prof. Cond. R.
7.3 when presenting at a seminar.

Background

    Prof. Cond. R. 7.3 governs a lawyer’s direct contact with prospective clients and

prohibits in-person, live telephone, or real-time electronic solicitation of clients unless
the person contacted is a lawyer, family, close personal friend, or has a prior
professional relationship with the lawyer. Prof. Cond. R. 7.3(a). The rationale for the
rule is to protect prospective clients from the “potential for abuse” and overreaching.
Prof. Cond. R. 7.3, Comment [2]. Additionally, a prospective client “may find it difficult
fully to evaluate all available alternatives with reasoned judgment and appropriate self-
interest in the face of the lawyer’s presence and insistence upon being retained
immediately.”1 Id.

     A “solicitation” is defined as:

              a communication initiated by lawyer directed to specific
              person and offers to provide, or reasonably understood as
              offering to provide, legal services.              A lawyer’s
              communication typically is not a solicitation if (a) directed to
              the general public—billboard, internet ad, website, or
              commercial, (b) in response to request for information, or (c)
              automatically generated in response to internet search.

Prof. Cond. R. 7.3, Comment [1]. Prof. Cond. R. 7.3 does not apply to communications
sent in response to requests from clients or others. Prof. Cond. R. 7.3, Comment [8].

   Prior to the adoption of the Rules of Professional Conduct in 2007, the Board

addressed direct solicitation and advertising issues under the former Code of
Professional Responsibility, including the dissemination of materials by lawyers to
prospective clients, but not regarding legal seminars. See Adv. Op. 87-007; Adv. Op. 99-
5.

   Following the adoption of the Rules in 2007, the Board addressed the application

of the advertising rules in two opinions. Advisory Opinion 2013-2 addresses direct
contact with prospective clients regarding text messages, and Advisory Opinion 2007-5

1
Prof. Cond. R. 7.3(a)(1) is not applicable to situations where a lawyer solicits another lawyer, as there is not “a
serious potential for abuse when the person contacted is a lawyer.” Prof. Cond. R. 7.3, Comment [5]. As a result,
this opinion does not apply to lawyers conducting seminars for other lawyers.
Op. 2015-2 3

addresses the issue of a lawyer’s advertising through a personalized letter to a
prospective business client under Prof. Cond. R. 7.3(c). Neither opinion directly
addresses the questions presented here.

Answer to Question 1:

  A lawyer may present an informational legal seminar to prospective clients. The

lawyer also may place law firm brochures and information near the exit of the seminar,
provided the lawyer does not personally distribute the materials to attendees.

   Under the former Code, the Board determined that a lawyer may conduct a legal

seminar and may promote or advertise a legal seminar provided the advertisement is
not false, fraudulent, misleading, or deceptive. Adv. Op. 87-007. Under former DR 2-
101(B)(3), brochures were permitted to be “disseminated directly,” but it was deemed
improper for a lawyer, or a third party on the lawyer’s behalf, to personally distribute
law firm brochures at a street corner, at a booth at a fair, at a church festival, or at other
similar events. Adv. Op. 99-5. As a result, certain methods of dissemination were
deemed permissible, including placing brochures in an advertising bag with other ads
for doorstep distribution, mailing brochures to the general public, mailing brochures
with a direct mail solicitation letter in compliance with the rules, or placing brochures
on counter displays in public places and private businesses. Adv. Op. 99-5.
Distribution of materials at or following a legal seminar was not discussed.

   Although Ohio has not directly addressed the question, other ABA Model Rule

states have opined on the issue of the distribution of law firm brochures and materials
at seminars. In Michigan, a law firm may set up a booth outside of a seminar to market
the firm, as long as the information communicated about the firm does not violate Prof.
Cond. R. 7.1, 7.2, 7.3, and the attendees have the option either to stop at the booth or to
walk away. Mich. Ethics Op. RI-99 (1999). In Pennsylvania, a lawyer who presents at a
seminar may leave brochures and general advertising materials regarding the firm’s
practice for distribution to the audience. Pa. Bar Assn. Op. 90-143 (1990). In South
Carolina, a lawyer who presents at a seminar may send letters or brochures to
attendees. Only the written solicitations sent to attendees known to be in need of legal
services in a particular matter must comply with Rule 7.3(c). S.C. Ethics Adv. Comm.
Op. 97-05 (1997); S.C. Ethics Adv. Comm. Op. 90-37 (1991). Finally, in North Carolina,
under Rule 7.3, a lawyer may provide a prospective client multiple business cards or
firm brochures if requested; however, the lawyer may not provide multiple business
cards or brochures to a third party for in-person solicitation on the lawyer’s behalf.
2007 N.C. Ethics Op. 4 .
Op. 2015-2 4

   Based on the Board’s prior opinions under the former Code, as well as the

opinions of other ABA Model Rule states, a lawyer who presents at a legal seminar may
make available law firm brochures and information at displays near the exit of the
seminar. With information available near the exit, attendees have the option either to
stop or to simply walk away. A lawyer presenting at the seminar may refer to the
availability of brochures and firm materials during the seminar, but neither the lawyer
nor the lawyer’s personal representatives may personally distribute the materials.
Regardless of the method of dissemination, the information must meet all of the
requirements of Prof. Cond. R. 7.1, 7.2, and 7.3.

   This differs from the direct dissemination of materials discussed in Adv. Op. 99-

5. Here, unlike in Adv. Op. 99-5, the lawyer will not personally distribute law firm
   information at the seminar. Rather, the materials will be made available for attendees
   to take. This is similar to a countertop display of law firm materials at a public or
   private business described in Adv. Op. 99-5. Additionally, the rules permit a lawyer
   presenting at a seminar to mail or email attendees information or brochures about the
   law firm using lists of seminar attendees. However, these mailings and materials must
   comply with Rule 7.3 and the other Rules of Professional Conduct.

   Therefore, a lawyer may present a legal topic at a seminar to prospective clients
   and may make available law firm brochures and information at the exit of the seminar,
   so long as the lawyer or the lawyer’s representatives do not personally distribute the
   information, and the information meets all requirements of the Rules of Professional
   Conduct.

Answer to Question 2:

   A lawyer may not remain after a seminar to discuss personalized legal needs of

attendees, even if attendees sign up to meet with the lawyer in advance of the seminar.
Instead, if attendees wish to meet with the lawyer, the attendees should be directed to
call the law office and schedule an appointment to meet with the lawyer, or be
instructed to contact a lawyer of their choice.

  Under the former Code, the Board recognized that a lawyer who conducts a legal

seminar may accept legal employment that results from the seminar, provided the
seminar does not highlight the lawyer’s professional experience beyond what is
permitted in the rules, the lawyer does not give individualized advice, and the lawyer
does not engage in improper solicitation. Adv. Op. 94-13. A lawyer also is permitted to
make general statements to seminar attendees regarding his or her availability,
telephone number, address, and whether the lawyer will provide a free consultation.
Op. 2015-2 5

Id. Further, if the lawyer recognizes that an attendee may have a legal problem or is
unaware of his or her legal rights, then the lawyer should suggest the attendee seek
counsel of the attendee’s choice. Id.

    Other ABA Model Rule states have adopted similar opinions. In New York,

lawyers may present legal seminars to non-lawyers, but if the program discusses a
lawyer’s skills or reputation or gives reasons to hire the lawyer, then the lawyer must
comply with the advertising rules. N.Y. St. Bar Assn. Op. 918 (2012). In Pennsylvania
and Maryland, a lawyer may present a seminar to non-clients, but may not directly
solicit attendees or address specific, personalized questions at the seminar. Pa. Bar
Assn. Op. 90-143 (1990); Pa. Bar Assn. Op. 93-126 (1994); 42-APR Md. B.J. 61 (2009).
Michigan requires lawyers to advise attendees, who wish to retain a lawyer from the
firm after a legal seminar, to contact the law firm office to set up an appointment. Mich.
Ethics Op. RI-99 (1999). In North Carolina, lawyers may not contact seminar attendees
in-person or by phone, rather attendees must contact the lawyer; however, lawyers may
request attendees to complete evaluations that include contact information and areas of
interest. 2007 N.C. Ethics Op. 4.

    Consistent with the Board’s previous advice under the former Code, as well as

the opinions from other jurisdictions under the Model Rules, the Board advises the
following. After a legal seminar a lawyer may not answer specific questions of
individual attendees or meet one-on-one with attendees to discuss legal issues related
to the presentation or the personal legal needs of the attendees. If an attendee
approaches the presenting lawyer with a personalized legal question, then the lawyer
should advise that person to contact the office to make an appointment or to seek legal
counsel of his or her choice. Similarly, if an attendee indicates after the seminar that he
or she wishes to retain the presenting lawyer, the lawyer should advise the attendee to
contact the law firm office to set up an appointment. The lawyer cannot be the person
to initiate contact with the prospective client following a presentation at a legal seminar.

    The Board recognizes an exception for attorneys who provide pro bono legal

services contemporaneously with the presentation of a seminar. Many law school legal
clinics, bar association pro bono programs, and legal aid organizations provide general
legal seminars on a variety of legal topics to those who cannot afford to hire a lawyer.
The ability to combine legal information and individualized brief advice in one setting
when the information is offered by volunteer lawyers for the purpose of educating
those who cannot afford to hire a lawyer, at no cost to the attendees, increases the access
to justice, and differs from a seminar provided by a lawyer in the hope of retaining
paying clients.
Op. 2015-2 6

   Additionally, the potential for abuse or overreach does not exist to the same

degree, or at all, when a legal aid or other pro bono program convenes an event offering
legal information at the same time as individualized brief advice. The purpose or
ultimate goal of the sponsoring organizations, and the pro bono volunteers who
participate, is to provide legal help to those who otherwise would not have access to a
lawyer. There is no expectation that the organization or the volunteer pro bono lawyers
will earn a profit or gain otherwise from retaining an attendee as a client. As a result, in
these limited circumstances, pro bono services may permissibly be provided
contemporaneously with the presentation of a legal seminar.

   Therefore, aside from the pro bono exception, a lawyer may not conduct in-

person solicitations of prospective clients after presenting a legal seminar. However, a
lawyer may accept legal employment resulting from a legal seminar at which he or she
presents, but contact must be initiated by the prospective client, and all requirements of
Rule 7.3 must be met.

Answer to Question 3:

   The “prior professional relationship” exception under Prof. Cond. R. 7.3(a) does

not apply to employees of an organizational client. A lawyer may not make an offer of
legal services to attendees during a firm-sponsored seminar, even if the employer of the
attendees is a client of the firm. However, a presenting lawyer may make general
statements to attendees regarding availability, contact and firm information, and
whether the firm provides free consultations. See Adv. Op. 94-13.

    Prof. Cond. R. 1.13 governs situations in which a lawyer represents an

organization as a client. A lawyer employed or retained by an organization represents
the organization acting through its constituents. Prof. Cond. R. 1.13(a). The
organization is the client, and employees of the organization are not typically
considered clients of the firm. The organization’s lawyer must ensure that the
individual employees understand that the lawyer represents the organization as a
whole, but may also represent individual employees. However, if a conflict of interest
arises, the lawyer for the organization likely cannot provide legal representation for
those individual employees. Prof. Cond. R. 1.13, Comment [10], [12].

   If a lawyer represents an organization and, at the same time, chooses to represent

an employee of that organization, the lawyer must ensure that an extensive conflict of
interest analysis is conducted, and appropriate waivers are executed. Additionally, a
lawyer must recognize that under the Rules of Professional Conduct certain conflicts of
interest cannot be waived. See for example, Prof. Cond. R. 1.7(c).
Op. 2015-2 7

   The lawyer-client relationship exists between the organization and the lawyer,

not the lawyer and the individual employees, and no “prior professional relationship”
exists between the individual employees of the organization that exempts the lawyer
from the mandates of Prof. Cond. R. 7.3. Employees of the organization who attend the
seminar are considered prospective clients, and the requirements under Prof. Cond. R.
7.3 apply. Therefore, a lawyer for an organization may not make an offer of services to
its employees who attend a seminar.

CONCLUSION: A lawyer may present a legal seminar to prospective clients, and may
provide brochures and law firm information near the exit of the seminar. A lawyer may
not meet with attendees following the seminar to answer legal questions, even if
attendees sign up to do so in advance. Rather, attendees with individual legal questions
should be advised to contact the lawyer’s office to schedule an appointment to meet
with the lawyer, or to contact a lawyer of their choice. An exception exists for lawyers
providing pro bono services who may meet with attendees contemporaneously to
presenting an informational legal seminar. Finally, the “prior professional relationship”
exception under Prof. Cond. R. 7.3 does not apply to seminar attendees who are
employees of an organizational client of the presenting lawyer.

Advisory Opinions of the Board of Professional Conduct are informal, nonbinding
opinions in response to prospective or hypothetical questions regarding the
application of the Supreme Court Rules for the Government of the Bar of Ohio, the
Supreme Court Rules for the Government of the Judiciary, the Ohio Rules of
Professional Conduct, the Ohio Code of Judicial Conduct, and the Attorney’s Oath of
Office.