A nonlawyer wants to sell collection forms bundled with my services, refer the buyers to me, and pay me a cut of the form sales, plus name me in a pamphlet. Is that allowed?

Plain-English summary

The inquiring attorney proposed a business arrangement with a nonlawyer. The nonlawyer would solicit businesses to handle their collection problems and sell them collection forms; the purchase price would include the inquiring attorney's services, and the buyers would agree to refer all collection matters to the attorney. The nonlawyer would pay the attorney a percentage from the sale of the forms and wanted to compile a pamphlet about the collection process mentioning the attorney and the attorney's experience. The attorney asked whether he could receive a percentage of the form sales and whether the nonlawyer could distribute pamphlets bearing the attorney's name.

The panel set out Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants), under which a lawyer with supervisory authority must make reasonable efforts to ensure the nonlawyer's conduct is compatible with the lawyer's obligations and is responsible for the nonlawyer's conduct that the lawyer orders or ratifies. It also set out Rule 5.4 (Professional Independence of a Lawyer), which bars sharing legal fees with a nonlawyer and permitting a person who recommends or pays the lawyer to direct the lawyer's professional judgment, and Rule 7.3 (Direct Contact with Prospective Clients).

The panel concluded that the nonlawyer would be soliciting business for the inquiring attorney, which violates Rules 7.3 and 5.3, and that the nonlawyer is "associated with" the attorney within the meaning of Rule 5.3, so the attorney would be responsible for the nonlawyer's conduct that the attorney knows of and ratifies. The panel stated that any pamphlet must conform to Rule 7.3, must be disseminated by the attorney, and must comply with Rules 7.1, 7.2, and 7.4. On the fee issue, the panel observed that the nonlawyer would receive a fee for providing the attorney's name to businesses, advised that using the attorney's name for solicitation by a nonlawyer is violative of the rules, and cautioned against such actions.

Currency note

This opinion was issued in 1995, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 5.3, 5.4, 7.3, 7.1, and 7.2 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which renumbered and amended the advertising, solicitation, and nonlawyer-assistance provisions. 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 mentioned here.

Common questions

Q: Can a lawyer let a nonlawyer solicit clients and refer them for a cut?

A: Under this opinion, no. The panel concluded that the nonlawyer's soliciting business for the lawyer violates Rules 7.3 and 5.3, and it advised against the arrangement.

Q: Is the lawyer responsible for the nonlawyer's solicitation?

A: The panel said the nonlawyer is "associated with" the lawyer under Rule 5.3, so the lawyer is responsible for the nonlawyer's conduct that the lawyer knows of and ratifies.

Q: Can the nonlawyer distribute a pamphlet using the lawyer's name?

A: The panel stated the pamphlet must conform to Rule 7.3, must be disseminated by the lawyer, and must comply with Rules 7.1, 7.2, and 7.4; it cautioned that using the lawyer's name for solicitation by a nonlawyer is violative of the rules.

Background and rules framework

The opinion applies Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants), Rule 5.4 (Professional Independence of a Lawyer), Rule 7.3 (Direct Contact with Prospective Clients), and the advertising rules 7.1 and 7.2 (with a reference to 7.4), corresponding to the like-numbered Model Rules. The panel read Rule 5.3 to make the nonlawyer an associated person whose solicitation is attributable to the lawyer, Rule 7.3 to bar the nonlawyer's solicitation, and Rule 5.4 to bar sharing legal fees with, or letting a payor direct the judgment of, the lawyer.

Citations and references

Rules of Professional Conduct:

• MR 5.3 (responsibilities regarding nonlawyer assistants)
• MR 5.4 (professional independence of a lawyer)
• MR 7.3 (solicitation of clients)
• MR 7.1 (communications concerning a lawyer's services)
• MR 7.2 (advertising)
• RI RPC 5.3, 5.4, 7.3, 7.1, 7.2 (the opinion also references Rule 7.4)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 95-45: Free-Meeting Letters to Businesses Are Solicitation and Must Be Labeled
• RI EAP Op. 95-21: Mailing Realtors Title-Search and Closing-Cost Coupons
• RI EAP Op. 95-05: A Referral Service Must Be Bar-Affiliated

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2095-47.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

FINAL

ETHICS ADVISORY PANEL
OPINION # 95-47, REQUEST # 614
ISSUED NOVEMBER 9, 1995

The inquiring attorney asks whether or not he/she may engage in the following business with a nonlawyer. The nonlawyer would solicit businesses to handle their collection problems.

The nonlawyer would sell collection forms to a business. The purchase price for the forms would include the services of the inquiring attorney. In purchasing the forms, the business would agree to refer all collection matters to the inquiring attorney to complete the collection process. The nonlawyer would then pay the inquiring attorney a percentage from the sale of the forms. In addition, the nonlawyer would like to compile a pamphlet that discusses the collection process, which would include a mention of the inquiring attorney and his/her experience in the collection process.

The inquiring attorney asks whether he/she can receive a percentage of the sale of the business forms and whether the nonlawyer may complete and distribute the pamphlets with the inquiring attorney's name.

Rule 5.3 "Responsibilities Regarding Nonlawyer Assistants" states the following:

With respect to a nonlawyer employed or retained by or associated with a lawyer...

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

The comments that follow the Rule state that "Such assistants, whether employees or independent contractors, act for lawyers in rendition of the lawyer's professional services. A lawyer should give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment.

Also, Rule 5.4 "Professional Independence of a Lawyer" states the following with regard to sharing legal fees with a nonlawyer:

(a) A lawyer or law firm shall not share legal fees with a nonlawyer...

(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.

In addition, Rule 7.3 "Direct Contact with Prospective Clients" addresses the issue of solicitation. That Rule states:

(a) A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. The term "solicit" includes contact in person, by telephone or telegraph, or by other communication directed to a specific recipient and includes any written form of communication directed to a specific recipient and not meeting the requirements of paragraph (b) of this rule.

It appears from the above cited Rules that the nonlawyer is soliciting business for the inquiring attorney which is a violation of Rules 7.3 and 5.3. The nonlawyer is associated with the inquiring attorney within the meaning of Rule 5.3. A lawyer is responsible for the actions of nonlawyers who are associated with him/her if as is the case here the lawyer knows of the actions and ratifies the conduct involved.

The preparation of the pamphlet must conform to Rule 7.3 and should be disseminated by the inquiring attorney. Additionally, the information provided in the pamphlet must comply with Rules 7.1, 7.2 and 7.4.

Regarding the issue of fee splitting with a nonlawyer, the nonlawyer is receiving a fee for providing the inquiring attorney's name to the businesses. The Panel advises that the use of the inquiring attorney's name for the purposes of solicitation by a nonlawyer is violative of the Rules of Professional Conduct and cautions against such actions.