I want an employer to hand its employees a notice and fee schedule offering my legal services, plus an employment-verification form. Must the notice and the form comply with Rule 7.3's advertising requirements?

Plain-English summary

The inquiring attorney proposed to provide legal services to the employees of a business client. The employer would give its employees a notice advising that the attorney had agreed to provide legal services for specified fees, with a fee schedule attached, that using the services was voluntary, and that referral forms could be obtained in the employer's office. The referral form, titled "Legal Service Plan Employment Verification," was meant to assure the attorney that the prospective client was in fact an employee. The attorney asked whether the notice and the verification form had to comply with Rule 7.3.

The Panel concluded the notice, but not the employee verification form, must comply with Rule 7.3. It first noted it would not edit documents or approve a document as a whole. It then explained that the Rules do not prohibit an existing client, such as the employer, from recommending a lawyer's services to employees, provided the client is neither paid nor given anything of value for the referral (Rule 7.2(c)). But written communications describing the attorney's services and fees that the employer makes available to the employees (the prospective clients) must comply with Rule 7.3(b), because the attorney is in effect soliciting business through the employer, and the notice is tantamount to a targeted direct mailing.

The Panel held the notice and the attached fee schedule must both be plainly marked "advertisement" under Rule 7.3(b)(1)(a), with a copy sent to Supreme Court Disciplinary Counsel per Rule 7.3(b)(1)(b). If the notice or fee schedule indicated the attorney's practice was limited to or concentrated in particular fields, it would also need a Rule 7.4 disclaimer that Rhode Island has no certification-of-specialization procedure. The employee verification form, however, is not a written communication to a prospective client under Rule 7.3, so Rule 7.3(b) does not apply to it. Finally, the Panel cautioned that the phrase "Legal Service Plan" is misleading in this context and violates Rule 7.1, because legal service plans are generally prepaid group or employer-funded plans administered by fiduciaries that let members choose from a pool of participating attorneys.

Currency note

This opinion was issued in 1996 (Opinion 96-28, issued November 14, 1996), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 7.3, 7.4, 7.1, and 7.2 as they stood at the time. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, and the advertising and solicitation rules have been amended repeatedly since. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or filing requirement mentioned here.

Common questions

Q: If an employer hands out my services notice, does it count as advertising?

A: Yes. The Panel said the attorney is effectively soliciting through the employer, so the notice is like a targeted direct mailing and must comply with Rule 7.3(b), including the "advertisement" mark and filing with Disciplinary Counsel.

Q: Does the employee verification form also have to be marked "advertisement"?

A: No. The Panel held the verification form is not a written communication to a prospective client under Rule 7.3, so Rule 7.3(b)'s requirements do not apply to it.

Q: Can the notice call this a "Legal Service Plan"?

A: The Panel said no. It found "Legal Service Plan" misleading in this context and thus a violation of Rule 7.1, because such plans are typically prepaid or employer-funded plans administered by fiduciaries with a pool of attorneys.

Background and rules framework

The opinion interprets Rhode Island Rules of Professional Conduct 7.3 (direct contact with prospective clients), 7.4 (communication of fields of practice), 7.1 (misleading communications), and 7.2(c) (paying for recommendations), the analogs of Model Rules 7.3, 7.4, 7.1, and 7.2. The Panel treated an employer-distributed services notice as the lawyer's own solicitation subject to Rule 7.3(b), while exempting a purely administrative verification form.

Citations and references

Rules of Professional Conduct:

• MR 7.3 / RI RPC 7.3(b) (direct contact with prospective clients; "advertisement" label and filing)
• MR 7.4 / RI RPC 7.4 (communication of fields of practice; specialization disclaimer)
• MR 7.1 / RI RPC 7.1 (misleading communications)
• MR 7.2 / RI RPC 7.2(c) (paying others for recommendations)

Other opinions cited:

• RI EAP Opinion 90-15 (1990): the Panel will not edit or approve documents as a whole

See also

• RI EAP Opinion 96-01: an employer may announce a lawyer's fixed-fee legal services to employees under Rule 7.3
• RI EAP Opinion 96-03: direct-mail advertisement to businesses affected by a regulatory change under Rule 7.3

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2096-28.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS ADVISORY PANEL
OPINION NO. 96-28, REQUEST NO. 689
Issued November 14, 1996

FACTS:

The inquiring attorney proposes to provide legal services for the employees of a business client. The business client-employer will provide a notice to its employees advising them that the inquiring attorney has agreed to provide legal services to them for specified fees. A fee schedule will be attached to the notice. The notice would also advise that use of the inquiring attorney's services is voluntary and that referral forms may be obtained in the employer's office. The purpose of the referral form, entitled "Legal Service Plan Employment Verification," is to assure the inquiring attorney that the prospective client is in fact an employee of the business. The inquiring attorney has submitted to the Panel a proposed notice and a proposed employee verification form.

ISSUES PRESENTED:

The issue presented by this inquiry is whether an employer's notice advising employees that the inquiring attorney has offered to provide them legal services, and whether an employee verification form, must comply with Rule 7.3 of the Rhode Island Supreme Court Rules of Professional Conduct.

OPINION:

The notice, but not the employee verification form, must comply with the requirements and restrictions set forth in Rule 7.3.

REASONING:

At the outset, the Panel reiterates that it will not embark on the task of editing documents, and will not therefore give approval to a document as a whole by way of an advisory opinion. See R.I. Sup. Ct. Ethics Advisory Panel, Op. 90-15 (1990).

The Rules of Professional Conduct do not prohibit an existing client, such as the business client-employer in the instant situation, from recommending the professional services of a lawyer to employees, provided the client is neither paid a fee nor given anything of value in exchange for such a referral. See Rule 7.2(c). However, written communications which describe the attorney's services and fees and which the employer makes available to the employees, i.e. the prospective clients, must comply with Rule 7.3(b). The inquiring attorney, in effect, is soliciting business from prospective clients through the employer, and the notice is tantamount to a targeted direct mailing which is permitted under Rule 7.3 subject to restrictions.

Rule 7.3 states in pertinent part:

Rule 7.3. Direct Contact with Prospective Clients.

(a) A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. The term "solicit" includes contact in person, by telephone or telegraph, or by other communication directed to a specific recipient and not meeting the requirements of paragraph (b) of this rule.

(b) Written communication.

(1) Written communication to prospective clients with whom the lawyer has no family or prior professional relationship are subject to the following requirements:

(a) Such written communications shall be plainly marked "advertisement" on the face of the envelope and at the top of each page of the written communication in type one size larger than the largest type used in the written communication.

(b) A copy of each such written communication shall be sent to the Supreme Court Disciplinary Counsel and another copy shall be retained by the lawyer for three (3) years. If written communications identical in content are sent to two (2) or more prospective clients, the lawyer may comply with this requirement by sending a single copy together with a list of the names and addresses of persons to whom the written communication was sent to the Supreme Court Disciplinary Counsel as well as retaining the same information.

Therefore, the notice proposed by the inquiring attorney, and the fee schedule which will be attached to it, must both be plainly marked "advertisement" in accordance with the requirements of Rule 7.3(b)(1)(a). The inquiring attorney must also submit a copy of the notice and fee schedule to the Supreme Court Disciplinary Counsel and otherwise comply with Rule 7.3(b)(1)(b).

In addition, if the notice or fee schedule indicates that the inquiring attorney's practice is limited to or concentrated in particular fields of law, the notice and fee schedule must contain a disclaimer in accordance with Rule 7.4. See Rule 7.4 (lawyer must indicate Rhode Island does not have procedure for certification of specialization if lawyer indicates practice is limited to or concentrated in particular fields of law.).

The employee verification form is not a written communication to a prospective client for purposes of Rule 7.3, and therefore the requirements and restrictions of Rule 7.3(b) do not apply to it. The form will be used merely to assure the inquiring attorney that the prospective client is an employee of the business client and qualifies for the services at the advertised fees.

The Panel cautions, however, that the use of the phrase "Legal Service Plan" is misleading in this context and as such, is violative of Rule 7.1 which governs all communications about a lawyer's services. See Rule 7.1 (lawyer shall not make false or misleading communications about the lawyer or lawyer's services.) In general, legal service plans are prepaid group plans or are partially funded by employers, are administered by fiduciaries, and allow plan members to choose from a pool of participating attorneys.