Can a lawyer offer his corporate clients a prepaid group legal-services plan to provide legal services to their employees?

Plain-English summary

An attorney represented several corporations in the construction business, some with more than 50 employees. He proposed to present those business clients with a prepaid group legal-services plan under which his own law firm would render legal services to the corporations' employees, and asked whether that was permissible. He cited Opinions 114 and 383 and DR 2-103(D)(4), and argued that the U.S. Supreme Court's decision in Bates v. State Bar of Arizona had eliminated any prohibitions those authorities might invoke.

The Committee disagreed. It reasoned that what was proposed was not advertising of the kind protected in Bates, but solicitation, of the kind addressed in Ohralik v. Ohio State Bar Association. The Committee concluded the proposed activity violates DR 2-103(C) and DR 2-103(D)(4)(b), and referred the inquirer to its Opinion 335, which it affirmed.

Currency note

This opinion was issued in 1978, before New Jersey's 1984 replacement of the Disciplinary Rules by the Rules of Professional Conduct and the later revisions to those rules, during the unsettled period just after Bates and Ohralik. It applied DR 2-103(C) and DR 2-103(D)(4) (recommendation of professional employment and group plans); in current New Jersey terms the analysis corresponds to RPC 7.3 (solicitation) and RPC 7.2 (advertising and group plans). Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Why was the prepaid plan treated as solicitation rather than advertising?

A: The opinion reasoned that the lawyer presenting his own firm's plan to his corporate clients to reach their employees was solicitation of the kind addressed in Ohralik, not the general advertising the Supreme Court protected in Bates.

Q: Did Bates v. State Bar of Arizona permit the plan?

A: No. The opinion held Bates did not control, because the conduct was solicitation, and it found the plan violated DR 2-103(C) and DR 2-103(D)(4)(b).

Background and rules framework

The opinion applied DR 2-103(C) and DR 2-103(D)(4)(b), governing a lawyer's involvement in recommending professional employment and in group or prepaid legal-services plans, and distinguished Bates (advertising) from Ohralik (solicitation). In current New Jersey terms the analysis corresponds to RPC 7.3 and RPC 7.2.

Citations and references

Rules of Professional Conduct:

• MR 7.3 / NJ RPC 7.3 (solicitation of clients)
• MR 7.2 / NJ RPC 7.2 (advertising; group and prepaid plans)
• DR 2-103(C), DR 2-103(D)(4)(b) (as in effect 1978)

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977)
• Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978)

Other opinions cited:

• NJ ACPE Opinion 114, 90 N.J.L.J. 480 (1967); Opinion 383, 100 N.J.L.J. 1205 (1977); Opinion 335, 99 N.J.L.J. 588 (1976)

See also

• NJ ACPE Op. 405: A Union's Lawyer Serving the Union's Members
• NJ ACPE Op. 408: Trade Name and Letterhead for a Nonprofit Law Project

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp399-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

102 N.J.L.J. 73, July 27, 1978

OPINION 399

Attorney Organizing Prepaid Legal Service Plan

An attorney represents several corporations which are actively engaged in the construction business. Several of these corporations have over 50 employees. He proposes to present to these business clients a prepaid group legal services plan under which his law firm will render legal services for their employees, and inquires as to its permissibility.

The inquirer refers to our Opinion 114, 90 N.J.L.J. 480 (1967); Opinion 383, 100 N.J.L.J. 1205 (1977); and DR 2-103(D)(4), and suggests that the decision of the United States Supreme Court in Bates v. Arizona, 433 U.S. 350 (1977), has effectively eliminated any prohibitions which they may invoke.

What is proposed is not advertising as in Bates v. Arizona, supra, but rather solicitation as to which, see Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978).

It is our opinion that the proposed activity is in violation of DR 2-103(C) and DR 2-103(D)(4)(b). We refer the inquirer to our Opinion 335, 99 N.J.L.J. 588 (1976), which we affirm.