Can a South Carolina lawyer give new residents a discount coupon for legal fees through a Welcome Wagon packet and follow up by letter if they do not respond?

Plain-English summary

Building on Opinion 93-08, which found that distributing lawyer advertising through a Welcome Wagon program is not prohibited but is subject to Rules 7.1, 7.2, and 7.3, the lawyer added two facts: he would give the Welcome Wagon hostess a gift certificate for a credit (for example, $50 to $75) toward legal fees to deliver to new residents, and after receiving a list of residents visited would send each a letter with information about the firm. He asked whether he may offer a fee coupon or discount through advertising, and whether a follow-up letter violates any rule, such as Rule 7.3(b).

On the first question, the committee concluded a discount coupon or special discounted fee, while perhaps undignified, is not a substantive violation so long as it is not false or misleading under Rule 7.1. A lawyer may set whatever fee he wishes and may even give services away, but may not set an arbitrary fee and then "discount" it down to his regular fee. Quoting a Texas opinion, the committee explained that a free or reduced-fee coupon can mislead an unsophisticated recipient into thinking legal matters can be solved cheaply, and that a coupon is misleading if it offers a free or discounted first half hour without disclosing the regular rate and that additional time may be required.

On the second question, the committee concluded a follow-up letter has the potential to violate Rule 7.3(b). Silence from a recipient may reasonably be interpreted as a desire not to be solicited under Rule 7.3(b)(1), and a subsequent contact after no response may be viewed as harassment under Rule 7.3(b)(2). The committee noted other jurisdictions have specifically disapproved Welcome Wagon distribution of lawyer advertising.

Currency note

This opinion was issued in 1996, before the South Carolina Bar's adoption of the 2005 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 Treat this page as historical context, not current guidance.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: Can a lawyer offer a discount coupon for legal fees?

A: The committee concluded yes, so long as the offer is not false or misleading under Rule 7.1. A lawyer may set or even waive fees, but may not inflate a fee and then "discount" it to the regular rate.

Q: When is a fee coupon misleading?

A: The committee, quoting a Texas opinion, said a coupon is misleading if it offers a free or discounted first half hour without disclosing the regular rate and that additional time may be required to resolve the matter.

Q: Can the lawyer send a follow-up letter if the resident does not respond?

A: The committee concluded a follow-up letter has the potential to violate Rule 7.3(b): silence may signal a desire not to be solicited (7.3(b)(1)), and further contact may be viewed as harassment (7.3(b)(2)).

Background and rules framework

The opinion applied Rule 7.1 (false or misleading communications), Rule 7.2 (advertising), and Rule 7.3 (solicitation of prospective clients, including the 7.3(b) prohibitions), each corresponding to the like-numbered Model Rule, building on the committee's earlier Opinion 93-08 on Welcome Wagon advertising.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 7.1 / Model Rule 7.1: false or misleading communications.
• South Carolina RPC 7.2 / Model Rule 7.2: advertising.
• South Carolina RPC 7.3 / Model Rule 7.3: solicitation of prospective clients.

Other opinions cited:

• S.C. Bar Ethics Adv. Op. 93-08: Welcome Wagon advertising.
• Texas Professional Ethics Committee Opinion 452 (1988): misleading free-offer coupons.
• Illinois State Bar Association Advisory Opinion 84-04 (1984); Alabama Ethics Opinion RO-91-17 (1991): disapproving Welcome Wagon distribution of lawyer advertising.

See also

• SC Bar Ethics Op. 97-05: Direct-Mail Solicitation
• SC Bar Ethics Op. 96-28: Law Firm Subsidiary

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-96-27/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 96-27

Inquiry 96-27 refers to an opinion previously issued by this committee (93-08), and poses two additional questions based on supplemented facts. In Opinion 93-08, this committee stated:

We address only the general question regarding the propriety of including advertising information in a "Welcome Wagon" distribution. This method of advertising, through the Welcome Wagon program, does not appear to be prohibited by the Rules of Professional Conduct. This does constitute advertising and consequently would be subject to the restrictions of Rule 7.2. Further, since some of the contacts involve solicitation, Rule 7.3 would apply in those cases. Any written material would consequently have to satisfy the requirements of Rule 7.1, 7.2, and 7.3.

In the instant request, additional facts are set forth as follows:

The lawyer proposes to provide the Welcome Wagon hostess, for delivery during the hostess visits with new residents, a gift certificate for a specified monetary credit, e.g., $50-$75 toward legal fees on any legal work performed. In addition, once the lawyer receives from the Welcome Wagon hostess a list of the new residents visited, the lawyer proposes to send a letter to each new resident providing additional information regarding the law firm, e.g., areas of practice.

Questions:
1. May a lawyer offer a coupon and/or (sic) discount fee for legal services through advertising?
2. Does the follow-up letter to a new resident violate any ethical rule, e.g., Rule 7.3(b)? (See Comment following Rule 7.3: "Moreover, if after sending a letter or other communication to a client as permitted by Rule 7.2, the lawyer receives no response, any further effort to communicate with the prospective client may violate the provisions of Rule 7.3(b).")

Summary:
1. A lawyer may offer a coupon or discount fee for legal services so long as such an offer is not misleading or inaccurate.
2. A follow-up letter to persons who have received the lawyer's advertising material incident to a visit from a Welcome Wagon hostess, but who have not responded to the lawyer as a result of receiving that material, has the potential to violate Rule 7.3(b).

Opinion:
1) A discount coupon or an offer of a special discounted fee for a new client, while perhaps undignified, may not be a substantive violation of the Rules of Professional Conduct, so long as it is not false or misleading. (Rule 7.1) In essence, a lawyer is free to establish whatever fees he wishes to charge, and in fact, may elect to give away his services; on the other hand, a lawyer may not set an arbitrary fee, then offer to discount that fee down to what his regular fee may have been.

In an opinion under the former Disciplinary Rules (but of value here), our counterparts in Texas opined that a free offer or reduced-fee offer has the capacity to mislead the recipient:

In analyzing the free-offer coupon for its capacity to deceive or mislead, we consider both the context of the communication and the method of dissemination as they would impact on an ignorant, unthinking, or credulous recipient[.] . . . The coupon at issue would be included with one from numerous other businesses, all urging consumers to come into their auto shops, health spas, restaurants, or other establishments to purchase goods or services. The implication in the coupon, as well as the coupon book (here read: Welcome Wagon packet) as a whole, is that the potential client will receive a bargain. The purchasers of coupon books (here read: recipients of Welcome Wagon packets) could include the unsophisticated, unthinking, credulous person who, while he knows the relative bargain to be had in the coupons for pizza and hair styling, has no concept of the hourly rate for an attorney or the amount of time that can be consumed in resolving a legal matter. The coupon itself and the coupon books as a whole have the capacity to mislead the potential client into believing he can solve his legal matters cheaply, which may be far from the truth[.] . . .

In the opinion of the Committee, a coupon is misleading if it states merely that the first half hour is discounted or free, without further disclosing the regular rate from which the discount or free one-half hour applies and that additional time may be required to resolve the particular matter for the client, which time will be billed at the hourly rate[.] . . .(Texas Professional Ethics Committee Opinion 452 [1988].)

2) A follow-up letter has the potential to violate Rule 7.3. The pertinent portion of Rule 7.3 reads:
(b) A lawyer shall not solicit professional employment from a prospective client by written or recorded communication or by in-person or telephone contact even when not otherwise prohibited by paragraph (a) if:
(1) The prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or
(2) The solicitation involves coercion, duress, or harassment.

Silence on the part of the recipient of the brochure may reasonably be interpreted as a desire not be solicited, thus invoking Rule 7.3 (b) (1).

If the recipient does not contact the lawyer after receiving the brochure or coupon (by the hands of the Welcome Wagon hostess or otherwise), then any subsequent contact by the lawyer may be viewed by the recipient as harassment, thus putting the lawyer's conduct under Rule 7.3 (b) (2). Some other jurisdictions have specifically disapproved the Welcome Wagon program as a means of distributing lawyer advertising material. (See Illinois State Bar Association Advisory Opinion 84-04 [1984] citing DR 2-103 (d); opinion subsequently affirmed in 1991 after Illinois adopted its version of the Model Rules of Professional Conduct. See also, Alabama Ethics Opinion RO-91-17 [1991].)