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The New York County Lawyers’ Association
NYCLA ETHICS OPINION NO. 720 (Issued 5/14/97)
DIRECT MAIL ADVERTISING
AN ATTORNEY MAY HIRE A NONLAWYER CONSULTANT TO OVERSEE THE NON- PROFESSIONAL RELATIONSHIP BETWEEN THE LAW FIRM AND CLIENTS OBTAINED AS A RESULT OF ADVERTISING, BUT HIS OR HER NONLAWYER CONSULTANT SHOULD NOT CONTACT NON- RESPONDING SOLICITATION RECIPIENTS BY TELEPHONE.
CODE: DR 3-101(A); DR 3-102(A); EC 3-6.
An attorney wishes to undertake a direct mail solicitation of potential clients. The attorney would like to hire a consultant to design the materials, supervise the mailing process, review the responses, arrange appointments, contact non responding addressees, and act as the initial contact person for respondents. This consultant, who is not an attorney, would not provide legal advice and would be compensated regardless of the success of the direct mail solicitation.
I. Hiring a Consultant to Solicit Potential Clients
An attorney may not aid a non lawyer in the unauthorized practice of law. DR 3-101 (A). If a lawyer hires a non lawyer to provide services to his law firm’s clients, he must supervise and maintain a direct relationship with the clients. EC 3-6. An attorney must also take care in protecting the confidences which his clients may divulge during conversations with the non lawyers employed by his firm. See N.Y. City Op. 1995-11; N.Y. State Op. 633.
Yet, as long as the tasks performed by the non lawyer do not require the exercise of legal professional judgment, an attorney will not run afoul of the Disciplinary Rules as long as he retains his supervisory role. N.Y. Cty. Op. 666. The non lawyer may deal directly with the public as long as he or she identifies himself as a non lawyer and these contacts do not call for legal judgments. Id.
An attorney may use a consultant to prepare legal advertising on his behalf as long as the advertisement has the name, address, and telephone number of this particular lawyer. N.Y. State Op. 597. The attorney remains responsible for the legal and ethical issues regarding the solicitation regardless of the fact that he or she may have been assisted by a non lawyer in its dispersal. Nassau Cty. Op. 93-26. The attorney cannot relinquish his or her supervisory role in the solicitation process. An attorney may not share legal fees with a non lawyer. DR 3-102(A). The attorney in this matter correctly understands that the consultant’s compensation may not be tied to the success or failure of the direct mail solicitation. Compensation on a contingency basis would give the non lawyer a pecuniary interest in the success of the solicitation that would violate DR 3-102(A). N.Y. City Op. 1995-11; N.Y. State Op. 633; N.Y. State Op. 565.
Therefore, if the attorney confines the non lawyers to the tasks listed in his query, he or she shall not violate the Disciplinary Rules, subject to the exception below.
II. Contacting Non-Responding Recipients of Solicitation by Telephone
While the Committee believes that an attorney’s decision to hire a consultant to oversee direct mail solicitation does not run afoul of the Disciplinary Rules, we do not endorse a non lawyer consultant’s attempt to contact by telephone non responding recipients of a direct mail solicitation.
New York courts have not directly ruled whether solicitation by telephone should be viewed more like in-person solicitation or direct mail solicitation. We do not have the authority to make these decisions of law. We note, however, that our sister committee of the New York State Bar Association has indicated that solicitation by telephone is included in the definition of in-person solicitation. See N.Y. State Op. 665. We are also aware that courts of jurisdictions outside New York and committees on professional ethics of other states have determined that the dangers of in-person solicitation exist similarly for attempts to acquire new legal business by telephone. See, e.g., Lawyer Disciplinary Bd. v. Allen, 479 S.E.2d 317, 325-28 (W. Va. 1996); Ohio Bd. of Com’rs on Grievance and Discipline, Opinion 90-2 (available at 1990 WL 640494, *2); Cal State Bar Comm. on Prof. Resp. Formal Opinion 1988-105 (available at 1988 WL 236372, *3).
The pitfalls of telephone solicitation are numerous. Although attempts to acquire new business by telephone may be less intrusive than in-person solicitation, there remains the possibility for invasion of the privacy of another’s home. Ohio Bd. Com’rs Griev. Disp. Op. 90-2. Telephone solicitation cannot be effectively monitored to prevent an attorney from making misrepresentations, because this method is not open to public scrutiny. Allen, 479 S.E.2d at 327-28; Ohio Bd. Com’rs Griev. Disp. 90-2; Cal. St. Bar Comm. Prof. Resp. 1988-105. See Allen, 479 S.E.2d at 325 (‘‘Both in-person and telephone solicitation involve unrecorded personal contact. Letters, on the other hand, provide a record of the communication.”)
By not responding to this attorney’s solicitation, the recipients are rejecting the attorney’s request to serve as their legal counsel. In addition, allowing a non lawyer, unfamiliar with the ethical rules under which attorneys in this State must operate, to contact non-responding individuals, opens the door to possibly egregious conduct.
Therefore, the Committee disapproves the use of consultants to contact non responding recipients of the direct mail solicitation. We note that the specific issue of whether an attorney, rather than a non lawyer consultant, may contact non responding recipients of direct mail advertising is not presently before the Committee.
An attorney may hire a non lawyer to assist in administrative and non- professional tasks with regard to a direct mail solicitation and the interaction with clients acquired through this solicitation as long as the attorney retains his or her supervisory role. The attorney’s non lawyer consultant, however, should not contact by telephone those who do not respond to the direct mail solicitation.