ETHICS DOCKET NO. 2004-29

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 2004-29

ATTORNEY SETTING UP A “VENDOR’S BOOTH” AT AN ASSOCIATION CONFERENCE OR SEMINAR ATTORNEY ADVERTISING AND IN-PERSON CONTACT

You inquire into whether a law firm would violate the rules of Professional Conduct by being a "Vendor" and setting up a booth at professional conferences and seminars with which the law firm's attorneys are associated?

By way of example, you mention conferences of professional associations of lawyers dealing with health care issues or health care financial management. At such conferences, the firm, by participating as a sponsor with a vendor booth, would advertise and promote its services to the attendees of the conference. By putting your firm's attorneys in the vender booth to meet with prospective clients, you maintain that this would not be direct contact because the potential client would approach the vender booth and not the other way around. Additionally, you have concluded that the consumer at such a conference would not be an unsophisticated consumer that the Rules of Professional Conduct is designed to protect from lawyer advertising.

Although not precisely on point, this committee addressed somewhat similar situations in the past. One of those was in 1990 when asked if a firm could advertise and conduct a day of free legal consultation comparable to the "Ask-a-Lawyer" program promoted by the Bar association on Law day. See docket 90-34 ¹.

Whereas you suggest that when your firm's vendor booth is set up at a conference, it is the conferee who approaches and makes the contact and not the attorneys of your firm who initiate the contact, that same rationale could have just as well been used in docket 90-34 in connection with the "ask a lawyer" booth set up anywhere that that inquirer's firm expected to find their prospective clients. In docket 90-34 we quoted Rule 7.3(a) of the Rules of Professional Conduct which provides when a lawyer may initiate in person contact with a prospective client in order to obtain professional employment. That rule states:

(a) A lawyer may initiate in person contact with a prospective client for the purpose of obtaining professional employment only in the following circumstances and subject to the requirements of paragraph (b).

(1) if the prospective client is a close friend, relative, former client or one whom the lawyer reasonably believes to be a client;
(2) under the auspices of a public or charitable legal services organization; or
(3) under the auspices of a bona fide political, social, civic, fraternal, employee or trade organization whose purposes include but are not limited to providing or recommending legal services, if the legal services are related to the principal purposes of the organization.

Following the logic of docket 90-34, assuming that the attendees at the conference or seminar are not limited to those individuals identified in 7.3(a)(l), it is the opinion of the Committee that you may not solicit clients at such a conference or seminar. Solicitation occurs when an attorney initiates personal contact with a potential client with whom the attorney had no previous relationship, for the purpose of pecuniary gain. Whereas you suggest that it is the attendee at a conference who would initiate the contact by choosing to approach the vendor booth, the whole idea of having a booth at the event is to entice attendees to approach your booth and then hire your firm for their needs. Under the circumstances, it would be impossible for the Committee to provide you with a definitive statement as to which actions would, or would not, involve "initiation" of a personal contact. Whether solicitation occurs will depend on the factual context of each case.

Another occasion when this committee addressed this issue was in Ethics Docket 98-15 where the enquirer wanted to establish a "free" pro-bono clinic for consumer debt counseling. The plan was that a potential client would come into the clinic seeking "free" counseling and the attorney would pick those who needed assistance with debtor protection and promote their legal services for bankruptcy filings. The committee observed that

"It would appear that your proposal is designed to lure potential clients to your office with the offer of free credit counseling services and then permit you to pick those to whom you will offer your services for hire. As such, it would violate Rule 7.3 (a) of the rules of Professional Conduct.

On the matter of your assumption as to the sophistication of an attendee at the type of conference you describe, while one might speculate on the sophistication of an attendee at such a conference, there is no way to gauge such a thing as your potential client approaches your vendor booth. Moreover, the provisions of Rule 7.3 on "Direct contact with prospective clients" (or 7.2 on "Advertising") do not concern themselves with the sophistication of the prospective client in describing conduct which is permissible. Sophisticated and unsophisticated persons are equally off-limits for impermissible advertisement and in-person contact by lawyers.

In considering your proposed plan, you should also be familiar with Rule 1.7 to 1.10 dealing with conflict of interests. As stated in 90-34 "Unless your firm is prepared, at the conference, to screen any potential conflicts-of-interest, care should be taken that no attorney-client relationship is established with any participant."

In conclusion, while the plan you have in mind may not be a per se violation of the Rules of Professional Conduct, it appears to be fraught with potential problems. Therefore, care and prudence is warranted to avoid being viewed as the initiator of the contact.

We trust that the foregoing is responsive to your inquiry.

¹  The opinions of this committee are available to MSBA members at the MSBA web site: www.msba.org.