Opinions of the General Counsel, 1115 ALBJ, 76 The Alabama Lawyer 414 (2015)

• Author: J. Anthony McLain, J.

Opinions of the General Counsel

Vol. 76 No. 6 Pg. 414

Alabama Bar Lawyer

November, 2015

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 J. Anthony McLain, J.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Cards, Cads and Ads-Various Advertising Issues Addressed

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Office of General Counsel regularly receives various requests for informal opinions concerning the requirements and limitations imposed upon attorney advertising by Rules 7.1, 7.2 and 7.3 of the Rules of Professional Conduct The Disciplinary Commission has determined that it would be beneficial to consolidate into one formal opinion those informal advertising opinions which appear to be of profession-wide interest. Accordingly, RO-2003-01 will address those questions set forth below.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0QUESTION ONE:

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Are an attorney's business cards considered advertising? May an attorney leave his business cards in the offices of other professionals such as doctors and accountants?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0ANSWER, QUESTION ONE:

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The business cards of an attorney can constitute advertising if the cards are distributed to the public in such a way as to, or with the intent to, directly solicit prospective clients. Direct solicitation of prospective clients is governed by Rule 7.3 of the Rules Professional Conduct Paragraph (a) of that rule provides as follows:

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0"Rule 7.3 Direct Contact with Prospective Clients

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0(a) A lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no familial or current or prior professional relationship, in person or otherwise, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. A lawyer shall not permit employees or a gents of the lawyer to solicit on the lawyer's behalf. A lawyer shall not enter into an agreement for or charge or collect a fee for professional employment obtained in violation of this rule. The term 'solicit' includes contact in person, by telephone, telegraph, or facsimile transmission, or by other communication directed to a specific recipient and includes contact by any written form of communication directed to a specific recipient and not meeting the requirements of subdivision (b)(2) of this rule." (Emphasis supplied]

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In formal opinion RO-91-17, the Disciplinary Commission concluded that it was impermissible for an attorney to participate in a Welcome Wagon sponsorship whereby the attorney's brochure and other advertising material would be distributed by a Chamber of Commerce employee to new residents in the community. The Commission determined that such participation would constitute solicitation by an agent acting on the lawyer's behalf in violation of Rule 7.3 of the Rules of Professional Conduct. Additionally, the Office of General Counsel has held in various informal opinions that attorneys may not leave their business cards or other advertising materials in bars and nightclubs, doctors' offices or the offices of bail bondsmen because to do so would constitute face-to-face solicitation by an agent. It is, therefore, the opinion of the Disciplinary Commission that it would be ethically impermissible for an attorney to provide business cards to other professionals for distribution to their clients, customers or patients.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0QUESTION TWO:

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0May an attorney print an advertisement for legal services on the exterior of prescription bags which a pharmacy will disperse to customers?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0ANSWER, QUESTION TWO:

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Disciplinary Commission is of the opinion that the ethical concerns discussed in RO-91-17, cited in the previous question, are equally applicable to this inquiry. The Commission determined that attorney participation in Welcome Wagon sponsorships is prohibited because such participation...