Can a lawyer pay to produce an informational audio tape for a company's pay-per-call phone line, where the company keeps all the caller fees?

Plain-English summary

The inquiry concerned a lawyer's participation in an advertising program run by a company that provides callers information on job listings and other employment issues. The lawyer would pay for the production of an audio tape used by the company, and consumers could select a tape by touch-tone telephone. The customer pays a flat fee to the company for a half hour of access to the line; all the money goes to the company and none to the lawyer, and the lawyer pays nothing to the company for any clients developed through the service.

The committee was of the opinion that, because the lawyer pays nothing except the actual production costs of the tape, nothing in the Rules of Professional Conduct would prohibit participation in the program, so long as the information on the tape was not false, deceptive, or misleading.

Currency note

This opinion was issued in 1988, before the 2006 revisions to the Washington Rules of Professional Conduct. The rules it discusses (RPC 5.4 on professional independence, RPC 7.1 on communications about services, and RPC 7.3 on direct contact with prospective clients) correspond to Model Rules 5.4, 7.1, and 7.3 and have since been amended. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a lawyer pay to produce a tape on a company's pay-per-call information line?

A: Per the opinion, yes. The committee was of the opinion that nothing in the Rules prohibits participation, because the lawyer pays only the actual production costs of the tape.

Q: Does it matter that callers pay a fee to the company?

A: The committee took the facts to be that the customer pays the company, all the money goes to the company and none to the lawyer, and the lawyer pays nothing to the company for clients developed. On those facts, the committee found no prohibition.

Q: Were there any limits?

A: Yes. The committee conditioned its conclusion on the information contained on the tape not being false, deceptive, or misleading.

Background and rules framework

The opinion applies Washington RPC 5.4 (professional independence of a lawyer), RPC 7.1 (communications concerning a lawyer's services), and RPC 7.3 (direct contact with prospective clients), corresponding to Model Rules 5.4, 7.1, and 7.3. The committee made participation turn on the payment structure: the lawyer pays only production costs and nothing tied to clients developed, so the arrangement is not a prohibited payment for referrals or improper fee arrangement, and it is permissible so long as the tape's content is not false, deceptive, or misleading.

Citations and references

Rules of Professional Conduct:

• Washington RPC 5.4 (professional independence of a lawyer), corresponding to Model Rule 5.4.
• Washington RPC 7.1 (communications concerning a lawyer's services), corresponding to Model Rule 7.1.
• Washington RPC 7.3 (direct contact with prospective clients), corresponding to Model Rule 7.3.

See also

• WSBA Ethics Op. 1071: a paid personal referral service is prohibited
• WSBA Ethics Op. 1018: a law firm brochure advertised to referral sources
• WSBA Ethics Op. 1225: direct mail solicitation and offers inside a third party's mailer

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=318

Original opinion text

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

Advisory Opinion: 1238
Year Issued: 1988
RPC(s): RPC 5.4; 7.1; 7.3
Subject: Advertising; solicitation; lawyer message included on job information telephone line

The Committee reviewed your inquiry concerning participation by a lawyer in an advertising program by [a company that provides information to callers on job listings and other employment issues]. The [Committee] understands that the lawyer will pay for the costs of production of an audio tape to be used by that company, and that consumers seeking specific kinds of information can select the audio tape of choice by using a touch-tone telephone. The customer pays [a set flat fee] to the company for a one-half hour access to the line. All the money is paid to the company and none of it is paid to the lawyer. The lawyer pays nothing to the company for any clients developed as a result of a consumer using the company's services. The Committee is of the opinion that since the lawyer pays nothing except for the actual production costs of the tape, that nothing in the Rules of Professional Conduct would prohibit participation in such a program, so long as the information contained on the tape was not false, deceptive or misleading.