The Professional Ethics Committee of the State Bar of Texas recently issued Ethics Opinion 689. The following question was presented to the committee:
Under the Texas Disciplinary Rules of Professional Conduct, may a lawyer use a nonlawyer employee to attract perspective clients to a booth in a public place operated by that nonlawyer employee? (Professional Ethics Opinion 689 September 2020).
Following a severe weather event, a law firm set up a booth in a public venue. The booth signage advertised the firm’s services in representing property owners’ claims against insurance companies regarding damage disputes. The booth was staffed by on-attorney employees of the firm. These employees did not speak to anyone unless they approached the booth. The non-attorney staff would then offer brochures regarding the firm and its services and suggest the booth visitor contact the firm for more information.
The opinion discussed the requirement for attorneys to supervise their non-attorney staff as well as Rule 7.03(a) of the Texas Disciplinary Rules of Professional Conduct. This rule prohibits an attorney, or someone acting on the attorney’s behalf, from in-person solicitation regarding “a matter arising out of a particular occurrence or event, or series of occurrences or events, from a prospective client or nonclient who has not sought the lawyer’s advice regarding employment or with whom the lawyer has no family or past or
present attorney-client relationship when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain.” This rule is the reason paralegals should refrain from
recommending or referring someone to a particular attorney, regardless whether the paralegal works for that specific attorney, unless explicitly asked for this information.
The opinion also discussed Rule 7.06(a) which prohibits a non-attorney employee from being offered or paid any additional compensation or bonus for recruiting new clients. Prohibited compensation would include inducements such as paid time off, gift cards, or any other type of rewards.
The opinion does not discuss requiring the non-attorney staff working the booth to identify themselves as paralegals. Anyone approaching the booth to get more information would assume those staffing the booth are attorneys. As with all interactions, paralegals must confirm that others, particularly members of the public, understand they are not attorneys.
It was not that long ago when attorney advertisements, including a booth at a public event, would have been frowned upon by most attorneys. However, many embers of the public are still not aware of their rights and how an attorney and the legal system may assist them. For those people, a booth at a public event may be the one of the ways to provide that information. They may then consider discussing their situation with an attorney to determine their legal rights and options.
Ultimately, the Professional Ethics Committee of the State Bar of Texas concluded that since the public could bypass the booth without engaging with the staff, and was under no obligation to interact with the staff or take a brochure, and as long as the attorney took steps to ensure the staff was not providing legal advice, the activity is permitted.