Can a lawyer who also owns a financial-planning business advertise her law practice there and offer legal services to that business's clients?

Plain-English summary

Informal Opinion IE-16-01 responds to a Wisconsin lawyer who practices estate and business planning and is also a partial owner of a separate financial planning and counseling business. She wants to advertise that she is an estate planning attorney in that business's materials and presentations, and asks to what extent her law office may accept employment from the financial planning business's clients. The committee frames the issues against SCR 20:5.8 (Wisconsin's version of Model Rule 5.7, effective January 1, 2017), which sets when a lawyer providing law-related services is bound by the Rules.

On the first question, the committee concluded that a lawyer may indicate she has a law practice in marketing materials for a law-related occupation if the materials comply with SCR 20:7.1 and 7.2. Once an advertisement states the person is a lawyer, it implies the client will benefit from legal expertise, so the Rules govern. The opinion observes that an ad for a financial planning business stating it is owned by a lawyer "would imply that legal services could be obtained through the financial planning business and consequently violate SCR 20:7.1," but that an appropriate disclaimer may cure the misleading implication.

On the second question, the committee concluded that the lawyer may not, by in-person contact, offer legal services to the clients of the financial planning business. SCR 20:7.3(a) bars in-person solicitation for pecuniary gain except where the person is a lawyer or has a family, close personal, or prior professional relationship with the lawyer. After analyzing the split in authority, the committee read "professional relationship" to mean a lawyer-client relationship, not a relationship arising from the lawyer's contemporaneous nonlaw business. It concluded that SCR 20:1.7 and 20:1.8(a) are not adequate to protect against the intimidation and overreaching that SCR 20:7.3 targets, so the in-person solicitation bar applies.

On the third question, the committee concluded that accepting an unsolicited request for legal representation from a nonlaw business client would not violate SCR 20:7.3, but cautioned that obtaining employment this way on more than an infrequent basis would make it difficult to show the employment was not based on prohibited solicitation.

In practice

The opinion holds that, under the Wisconsin rules as they stood at the time, advertising that ties a law-related business to the lawyer's law practice is governed by the lawyer-advertising rules (SCR 20:7.1 and 7.2) and may need a disclaimer to avoid implying that legal services come through the side business. Under the opinion, the lawyer may not use the side business to solicit legal clients in person, because the "prior professional relationship" exception in SCR 20:7.3(a) does not cover the lawyer's contemporaneous nonlaw business clients; accepting unsolicited legal work from such clients is permitted only on an infrequent basis.

Common questions

Q: Can a lawyer mention her law practice in ads for her separate financial-planning business?

A: Yes, if the materials comply with SCR 20:7.1 and 7.2. The opinion concludes that once an ad states the owner is a lawyer, the lawyer-advertising rules apply, and a disclaimer may be needed to avoid implying that legal services come through the business.

Q: Can she offer legal services in person to her financial-planning clients?

A: No. The opinion concludes SCR 20:7.3(a) bars in-person solicitation, and the "prior professional relationship" exception does not include clients of the lawyer's contemporaneous nonlaw business.

Q: Do the conflict-of-interest rules cover this instead of the solicitation rule?

A: No. The opinion concludes SCR 20:1.7 and 20:1.8(a) protect against conflicts but not against the intimidation and overreaching of in-person solicitation, so SCR 20:7.3 still applies.

Q: Can the lawyer take a financial-planning client who asks her, unprompted, for legal help?

A: Yes. The opinion concludes accepting an unsolicited request does not violate SCR 20:7.3, but warns that doing so more than infrequently can establish prohibited solicitation.

Background and rules framework

The opinion interprets SCR 20:7.3 / Model Rule 7.3 (solicitation of clients) and SCR 20:7.1 and 7.2 / Model Rules 7.1 and 7.2 (lawyer communications and advertising), set against SCR 20:5.8 / Model Rule 5.7 (responsibilities regarding law-related services). It also discusses SCR 20:1.7 / Model Rule 1.7 and SCR 20:1.8(a) / Model Rule 1.8(a) (conflicts and business transactions with clients).

Citations and references

Rules of Professional Conduct:

• Model Rule 7.3 / SCR 20:7.3 (solicitation of clients)
• Model Rule 7.1, 7.2 / SCR 20:7.1, 20:7.2 (false or misleading communications; advertising)
• Model Rule 5.7 / SCR 20:5.8 (law-related services); Model Rule 1.7, 1.8(a) / SCR 20:1.7, 20:1.8(a)

Other opinions cited:

• Wisconsin Formal Ethics Opinion E-83-14 (definition of law-related service)
• ABA Formal Opinion 382 (1972) (law-related occupations)
• South Carolina Ethics Opinion 02-06 (lawyer may own mortgage brokerage but may not use it to solicit clients)

See also

• WI Ethics Op. E-86-03: Attorney-Realtor Dual Practice Fees and Conflicts
• WI Ethics Op. I-4-67: Solicitation of Pension or Profit-Sharing Work

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/IE-16-01%20Advertising%20and%20Solicitation%20in%20Law-Related%20Services%20Owned%20by%20Lawyer.pdf