Can a lawyer supply magazines for a business's waiting room in plastic covers printed with the lawyer's name, address, and phone number?

Plain-English summary

A lawyer proposed to supply magazines for the waiting rooms of businesses, with each magazine in a plastic cover printed to say the magazine was provided by the lawyer and giving the lawyer's address and telephone number. The Committee was asked whether that was permissible.

The Committee concluded that supplying the magazines gives something of value to the business: without the lawyer's magazines, the waiting room would be less comfortable or the business would bear the cost itself. Unless the cover affirmatively says it is an advertisement or disclaims any recommendation by the business, some customers would likely read the arrangement as the business recommending the lawyer. That would be value given in exchange for an implied recommendation, contrary to DR 2-103(C), which bars a lawyer from compensating or giving anything of value to a person or organization to recommend or secure the lawyer's employment, except for permitted public-media advertising within DR 2-101.

The Committee concluded the rule would not be violated if the cover made clear either that the arrangement was the lawyer's advertisement (in which case the advertising rules would have to be satisfied) or that no recommendation by the business should be inferred. The Committee distinguished Opinion No. 456 (Texas Bar Journal, September 1988), which involved a placard in an auto body repair shop alerting the public to the availability of legal assistance; that situation gave nothing of value to the shop and so did not violate DR 2-103(C).

Currency note

This opinion was issued in 1989, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The Disciplinary Rules have since been amended, including the comprehensive 2021 revisions adopted by Texas Supreme Court order, and Texas never adopted the ABA's Ethics 2000 framework. Subsequent rule changes 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 Treat this page as historical context, not current guidance.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 give a business magazines branded with the lawyer's name for the waiting room?

A: The Committee concluded only with a clarifying statement. As proposed, it would violate DR 2-103(C) as value given for an implied recommendation, unless the cover says it is the lawyer's advertisement or disclaims any recommendation by the business.

Q: Why is providing the magazines treated as giving something of value?

A: Per the opinion, without the lawyer's magazines the waiting room would be less comfortable or the business would have to pay for them itself, so supplying them benefits the business.

Q: How is this different from a placard advertising legal services in a shop?

A: The Committee distinguished Opinion 456, where a placard in an auto body shop gave nothing of value to the shop and so did not violate DR 2-103(C); the magazine arrangement does transfer value to the business.

Background and rules framework

The opinion interprets DR 2-103(C) of the former Texas Code of Professional Responsibility, which prohibits compensating or giving anything of value to a person or organization to recommend or secure a lawyer's employment, while allowing public-media advertising within DR 2-101 (analogous to ABA Model Rule 7.2(b), barring giving anything of value for recommending a lawyer's services). The analysis turns on whether the arrangement transfers value to the business in exchange for an implied recommendation, and whether a clarifying statement removes that implication.

Citations and references

Rules of Professional Conduct:

• MR 7.2(b) (no giving anything of value for recommending a lawyer's services)
• DR 2-103(C), Texas Code of Professional Responsibility (no value for recommendation; public-media advertising excepted)
• DR 2-101, Texas Code of Professional Responsibility (advertising limits, referenced)

Other opinions cited:

• Texas Ethics Opinion 456 (Texas Bar Journal, September 1988): placard advertising legal assistance in a repair shop did not violate DR 2-103(C)

See also

• TX Ethics Op. 507: Targeted Newspaper Ad and Reciprocal Referral Letter to a Layperson
• TX Ethics Op. 470: Direct-Mail Solicitation Letter and Brochure to an Accident Victim
• ABA Formal Op. 501: Solicitation

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-462/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_462.pdf

Original opinion text

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

QUESTION PRESENTED

Under the Texas Code of Professional Responsibility, may an attorney provide subscriptions to magazines to be placed in waiting rooms of businesses where each magazine would be enclosed in a plastic magazine cover on which there would be a printed statement indicating that the magazine was provided by the attorney and giving the attorney's address and telephone number?

DISCUSSION

Provision of magazines for a waiting room would involve giving something of value to the business concerned -- if the lawyer did not provide the magazines, the waiting rooms would not be as comfortable for customers or the business itself would have to bear the expense of providing the magazines. Unless the magazine cover affirmatively indicated that it was an advertisement or there was a printed disclaimer of any recommendation of the lawyer by the business concerned, the arrangement would likely be viewed by some of the business's customers as a recommendation of the lawyer by the business. Thus, in the absence of some clarifying statement, the arrangement would involve a lawyer's giving something of value to the business in exchange for an implied recommendation of the lawyer. Such transfer of value in exchange for implied recommendation would be in violation of Disciplinary Rule ("DR") 2-103(C), which provides as follows: "A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client; except that a lawyer may advertise in the public media within the limits of DR 2-101, so long as the advertising communication does not take place in person or by telephone."

This rule would not be violated by the proposed magazine arrangement if steps were taken to make clear that provision of the magazines was an advertisement or that no recommendation of the lawyer by the business should be inferred by customers. A clarifying statement along these lines could easily be included with the statement that the magazines were provided by the lawyer.

The situation that is the subject of this opinion is to be distinguished from the situation discussed in Opinion No. 456 (Texas Bar Journal, September 1988), which dealt with a placard in an auto body repair shop alerting the public to the availability of legal assistance. The placard situation did not involve a lawyer's providing anything of value to the repair shop and hence there was no violation of DR 2-103(C).

CONCLUSION

Under the Texas Code of Professional Responsibility, a lawyer's provision of magazines for a business waiting room with statements on plastic covers identifying the lawyer providing the magazines would violate DR 2-103(C) unless there was on the magazine cover either (1) a clear statement to the effect that the magazine arrangement was an advertisement by the lawyer (in which event compliance with the provisions of the Disciplinary Rules pertaining to advertising would be necessary); or, (2) an effective disclaimer so that persons reading the magazine cover could not reasonably understand the business to be recommending the lawyer who was identified as providing the magazines.

Tex. Comm. On Professional Ethics, Op. 462 (1989)