ADVERTISING

1996 SUPPLEMENT

Adv.-88

INFORMAL OPINION 940109

QUESTION: Attorney asks several questions about solicitingprospective clients.

1. Attorney solicits in person for another type of business,recommends the person consult an attorney and later mails a letterto the person offering Attorney's services.

2. Attorney primarily works in a business which is not a lawfirm. Another person in that field refers a person needing legalservices to Attorney.

3. Attorney primarily works as an employee in a businesswhich is not a law firm. Another employee in that business refers aperson needing legal services to Attorney.

4. Attorney primarily practices law. Attorney works on salaryfor a non-law firm company. An employee of the company refers aperson to Attorney for personal legal work. Attorney provides noticeunder Rule 4-1.8. Attorney does not charge a fee but the companydoes.

5. Attorney primarily works as a partner in a business whichis not a law firm. Another partner in that business refers a personneeding legal services to Attorney. The legal fee does not go to thepartnership.

6. Attorney primarily works as a partner in a business whichis not a law firm. Another partner in that business advises a person tosee an attorney. Attorney subsequently contacts the person bytelephone or mail and gives full disclosure.

ANSWER:

1. Violates 4-7.3(b).

2. This would not violate the rules. Attorney must keep the lawpractice separate from the business and must not give anything ofvalue for the referral.

3. Violates 4-7.3(b).

4. Violates 4-5.4 and 4-7.3(b).

5. Violates 4-7.3(b) plus law practice must be keptcompletely separate from other business.

6. Contact by telephone would violate 4-7.3(b). Contact bymail would not violate the rules as long as none of the exceptionsin 4-7.3(c) apply to the situation. The law practice would have to bekept completely separate from the other business.

[Rule 4 -- 7.3]

Adv.-89

INFORMAL OPINION 940118

QUESTION: Attorney would use an advertising firm to dodirect marketing. Attorney would draft a form letter for each type ofcase. The advertising firm would use the form letter, a database ofinformation obtained from police reports and a facsimile signatureof Attorney to do direct mailings to prospective clients.

ANSWER: Although direct mailing is authorized under Rule4-7.3(a), Attorney must make the determination that none of theexceptions found in Rule 4-7.3(c) apply to the situation. Attorneyalso must supervise any non-lawyers who are acting as Attorney'sagents under Rule 4-5.3. This system would inherently violate both ofthose rules.

[Rule 4 -- 5.3; 7.3]

Adv.-90

INFORMAL OPINION 940128

QUESTION:

1. Must Attorney make a determination of the recipient'smental state for radio and television advertising as is required oftargeted direct mail advertising?

2. Attorney represents an insurance company. May Attorneydirectly contact the opposing party to negotiate settlement?

ANSWER:

1. The determination of mental state is required by Rule4-7.3(c) for targeted mailings under Rule 4-7.3(a) and in personsolicitation (when in person solicitation is permitted by Rule 4-7.3(b)).General advertising is governed by Rule 7.2 which does not containthis requirement.

2. Regardless of whom Attorney represents, Rule 4-4.2prohibits direct contact with a represented person regarding thesubject of the representation.

[Rule 4 -- 7.2; 7.3; 4.2]

Adv.-91

INFORMAL OPINION 940132

QUESTION: Attorney is an occasional consultant for anotherattorney. Must Attorney's name be included in the other attorney'sadvertisement?

ANSWER: No. Neither Attorney nor Attorney's firm need beidentified. As an occasional consultant, the other attorney wouldhave to seek the client's consent and ascertain that there are noconflicts before bringing Attorney in on a matter.

[Rule 4 -- 7.1]

Adv.-92

INFORMAL OPINION 940135

QUESTION: Attorney has been asked to provide a testimonialfor a person in another business. Attorney has had a few dealingswith this person but has never been a customer or client of thisperson. Attorney will not have any control over how the testimonialis used. Attorney hopes this person will refer clients to Attorney ifAttorney gives the testimonial.

ANSWER: Because of the potential for this communication tobe misleading, it may violate Rule 4-8.4(c). The danger is particularlyacute in a situation such as this in which Attorney has no controlover the manner in which the statements are used. Additionally, thissituation would involve giving something of value for referrals inviolation of Rule 4-7.2(c).

[Rule 4 -- 8.4(c); 7.2(c)]

Adv.-93

INFORMAL OPINION 940136

QUESTION: Attorney proposes to offer a free seminar toprovide information about estate planning. Attorney will describethe fee schedule and offer a free one hour consultation only tothose who attend the seminar.

ANSWER: Attorney may offer a free seminar but Attorney maynot solicit during the seminar. Such solicitation would violate Rule4-7.3(b). Attorney may advertise a free one hour consultation butmay not limit it to those who attend the seminar.

[Rule 4 -- 7.3(b)]

Adv.-94

INFORMAL OPINION 940141

QUESTION: May Attorney call businesses of a certain typeand offer to send a firm resume? Attorney has had no relationshipwith these businesses in the past.

ANSWER: Rule 4-7.3(b) permits solicitation by personalcontact only in the limited circumstances found in Rule4-7.3(b)(1)-(3). Therefore, the telephone contact with thesecompanies would be prohibited.

[Rule 4 -- 7.3]

Adv.-95

INFORMAL OPINION 940146

QUESTION:

(1) Must Attorney include the disclaimer language in the newversions of Rules 4-7.2 and 4-7.3 regarding contingent fee caseseven if Attorney never charges costs or expenses to the client if thecase is lost?

(2) If Attorney must include the disclaimer, may Attorney alsoexplain that the disclaimer is required but Attorney will not chargecosts and expenses?

ANSWER:

(1) Yes.

(2) Yes.

[Rule 4 -- 7.2; 7.3]

Adv.-96

INFORMAL OPINION 940151

QUESTION: May Attorney allow the law firm's staff to usebusiness cards?

ANSWER: Yes, if they are truthful and not misleading.

[Rule 4 -- 7.1]

Adv.-97

INFORMAL OPINION 940156

QUESTION: Attorney has a professional corporation. Attorneywill register a fictitious trade name for the professional corporation.Attorney wants to use both names in advertising and only the tradename on letterhead.

ANSWER: In order to avoid violating Rule 4-7.1, Attorneywould have to use the trade name and the professional corporationname on letterhead as well as in advertising.

[Rule 4 -- 7.1]

Adv.-98

INFORMAL OPINION 940160

QUESTION: Attorney plans to send direct mailings to formerestate planning clients regarding the need to update the estateplan in light of recent developments. Will this trigger the disclaimerrequirement regarding solicitation of prospective clients under theprovisions of Rule 4-7.3 that became effective 1/1/95?

ANSWER: No, as long as Attorney is following up on previousrepresentation on the same matter. However, the disclaimerrequirement might apply regarding contacting a former client inanother situation. The question is one that would depend on thecircumstances.

[Rule 4 -- 7.3]

Adv.-99

INFORMAL OPINION 940182

QUESTION: Attorney wishes to be listed in a directorypublished by an association of businesses. The directory will identifyAttorney's area(s) of practice but will not indicate that these arespecialties. Attorney will pay for the listing but the listing will notindicate endorsement by the association.

ANSWER: The format is acceptable. Acceptability of contentwill depend on each attorney's advertisement.

[Rule 4 -- 7.2; 7.4]

Adv.-100

INFORMAL OPINION 940183

QUESTION: Attorney has written a book for the publicregarding a legal subject. Attorney plans to send a letter toindividuals offering the book for free. Is the letter or the actualdistribution of the book advertising? Must the letter include the"advertising" disclaimer in the new version of the solicitation rule(Rule 4-7.3)?

ANSWER: Both are advertising. The disclaimer need not beincluded unless they are sent to "persons known to need legalservices of the kind provided by the lawyer in a particular matter"within the meaning of Rule 4-7.3(a).

[Rule 4 -- 7.2; 7.3]

Adv.-101

INFORMAL OPINION 940187

QUESTION: Attorney submits several types of advertisingmaterials and asks whether they fall within the provisions of the newversions of Rules 4-7.2 and 4-7.3. The materials submitted include anannouncement, brochures regarding seminars, cover letters withbrochures, newsletters, and firm resumes. Attorney also asks whetherletters describing the attorneys and the firm that are sent at therequest of the prospective client fall within these rules.

ANSWER: All of the materials submitted are advertisingmaterials and fall within the provisions of either Rule 4-7.2 or 4-7.3. Ifany of these materials contain language indicating that cases willbe accepted on a contingent fee basis, they would have to includethe applicable disclaimer. The materials submitted would not fallwithin the solicitation rule (Rule 4-7.3) and would not require the"ADVERTISING" disclaimer unless the recipient is a "person known toneed legal services of the kind provided by the lawyer in aparticular matter." Information sent at the request of a prospectiveclient does not fall within the advertising rules.

[Rule 4 -- 7.2; 7.3]

Adv.-102

INFORMAL OPINION 940197

QUESTION: Attorney is a former judge who is returning to thepractice of law. May Attorney indicate Attorney's status as a retiredjudge on business cards, letterhead, etc.?

ANSWER: Yes, however this office cannot give an opinionregarding the Code of Judicial Conduct. Attorney should contactthe judicial commission for an opinion from that perspective.

[Rule 4 -- 7.1]

Adv.-103

INFORMAL OPINION 940204

QUESTION: A financial planner will make referrals to Attorney.Attorney will not give anything of value to the financial planner forthe referrals. The financial planner offers to have Attorney call theclient.

ANSWER: The referral does not create a problem under Rule4-7.2(c). Under Rule 4-7.3(b), after the financial planner makes thereferral to Attorney, the client should initiate the contact withAttorney.

[Rule 4 -- 7.2; 7.3]

Adv.-104

INFORMAL OPINION 940207

QUESTION: Attorney represents clients on a contingent feebasis in cases, including Social Security cases. Social Security lawprohibits attorneys from seeking reimbursement of expenses whenthere is no recovery.

(1) Does Attorney have to include the disclaimer languageof the new version of Rule 4-7.2 in advertisements or will a statementregarding the provision of Social Security law suffice?

(2) May attorney further explain in the advertisement that theRule 4-7.2 disclaimer is required but that Attorney's clients will not beresponsible for expenses if they are not successful?

ANSWER:

(1) The disclaimer required by Rule 4-7.2 must be included inAttorney's advertisements despite the fact that Attorney will not holdthe client responsible for these expenses. Attorney may, additionally,include a statement regarding the provision of Social Security law.

(2) Yes.

[Rule 4 -- 7.2]

Adv.-105

INFORMAL OPINION 950005

QUESTION: Attorney proposes to send a general newsletterto clients and prospective clients. The newsletter would beinformative in nature and summarize current changes in the law. Isthis advertising under Rules 4-7.2 and 4-7.3?

ANSWER: The newsletters would be advertising under Rule4-7.2. Unless the newsletters dealt with an individual prospectiveclient or an individual situation involving a prospective client, theywould not be considered advertising for purposes of Rule 4-7.3. The"contingent fee" disclaimer would have to be included, ifapplicable. The "advertising" disclaimer would not be necessaryunless the newsletters were targeted.

[Rule 4 -- 7.2; 7.3]

Adv.-106

INFORMAL OPINION 950019

QUESTION: Attorney proposes specific language for anadvertisement. Attorney will indicate that Attorney will handlepersonal injury cases and that there is no fee for a consultation.Attorney does not mention accepting cases on a contingency feebasis although Attorney will do so.

ANSWER: Attorney need not include the "contingency fee"disclaimer of Rule 4-7.2, if the advertisement does not reference acontingency fee or words to that effect.

[Rule 4 -- 7.1; 7.2]

Adv.-107

INFORMAL OPINION 950022

QUESTION: May Attorney form a general businesscorporation that will not practice law but which will practice in arelated area and which will solicit clients for Attorney?

ANSWER: The general business corporation would beengaging in "in person" solicitation prohibited by Rule 4-7.3(b) anytime it made a referral to Attorney. If a client of Attorney developeda need for services such as those provided by the general businesscorporation, Attorney could only refer the client to thewholly-owned corporation after making full disclosure of therelationship between the corporation and the firm and making itclear to the client that the client has the option to obtain theservices from any source of the client's choosing. Additionally, thissituation raises issues of confidentiality. If Attorney does form such acorporation, Attorney must realize that it is a completely separateentity and that confidentiality of information relating to the law firm'sclients must be strictly maintained.

[Rule 4 -- 7.3; 1.7; 1.6]

Adv.-108

INFORMAL OPINION 950026

QUESTION: Attorney owns an interest in Corporation A.Attorney and Corporation A will share a suite of offices. CorporationA will be operated completely separately and with properdesignation. Attorney will only minimally be involved in the day today operation of the corporation. Attorney B who also owns aninterest will be involved in the day to day operation and will alsoshare the office space.

ANSWER: This arrangement would not violate Rule 4-5.4. Theattorneys would have to make full disclosure any time they wouldrefer a client to the corporation. Additionally, it would constituteprohibited "in person" solicitation for the corporation to makereferrals to either attorney. The attorneys must also make certainthat all information related to their clients is secure from access byanyone who shares space in the suite of offices who is not part ofthe attorney's firm.

[Rule 4 -- 5.4; 1.7; 7.3]

Adv.-109

INFORMAL OPINION 950027

QUESTION: Attorney submits a brochure and asks whether itwould violate the Rules. Attorney also asks whether it would bepermissible to distribute the brochure to clients who come to theoffice and to people who would pick them up at other places ofbusiness.

ANSWER: The particular brochure submitted does not violatethe Rules. However, this opinion does not address possible uses ofthe brochure. For example, the brochure could not be used as atool for "in- person" solicitation prohibited by Rule 4-7.3(b). It wouldbe permissible to distribute the brochure as described as long asAttorney gives nothing of value to the other businesses fordistributing the brochure. Giving something of value would violateRule 4-7.2(c).

[Rule 4 -- 7.1; 7.2; 7.3]

Adv.-110

INFORMAL OPINION 950032

QUESTION: Attorney proposes to use an advertisement whichincludes the phrase "Sign up at seminar for free living will." Theadvertisement will also describe living trusts as "revolutionary" and"risk-free."

ANSWER: The phrase about signing up for a free living willdoes not violate the rules but indicates that there is a concernabout the possibility that "in person" solicitation in violation of Rule4-7.3(b) may occur at the seminar. The use of the words"revolutionary" and "risk-free" in connection with living trusts raisesconcerns. Living trusts have been in use for many years and havebeen quite popular estate planning tools for several years.Therefore, the accuracy of the word "revolutionary" is doubtful. Theterm "risk-free" could be interpreted as indicating that a living trustis right for everyone, will never have adverse consequences andcannot be challenged. The accuracy of this term is also doubtful.

[Rule 4 -- 7.1; 7.3(b)]

Adv.-111

INFORMAL OPINION 950035

QUESTION: May the law firm display the firm's initials on signs,napkins, cups, business cards, stationery, etc.?

ANSWER: Yes.

[Rule 4 -- 7.2]

Adv.-112

INFORMAL OPINION 950043

QUESTION: May Attorney pay a not-for-profit attorney referralservice a fee which is a percentage of the attorney's fees collectedon a case referred to Attorney by that referral service?

ANSWER: Yes, Rule 4-7.2(c) authorizes payment of "the usualcharges of a not-for-profit lawyer referral service or other legalservice organization."

[Rule 4 -- 7.2(c); 5.4(a)]

Adv.-113

INFORMAL OPINION 950053

QUESTION: Attorney submits a proposed advertisement. ANSWER: The claims that Attorney has defended clientsagainst "unjust" claims is probably not readily verifiable as requiredby Rule 4-7.1(e). The general statement of "over [$X] recovered indamages" is usually considered to violate Rule 4-7.1(c) by creatingan unjustified expectation in light of the fact that the overalldamages figure does not relate to any specific case. Otherwise theadvertisement is acceptable assuming it is truthful and notmisleading and is readily susceptible to verification.

[Rule 4 -- 7.1]

Adv.-114

INFORMAL OPINION 950069

QUESTION: Attorney would like to withdraw from the firm andpractice from home. May Attorney use the firm's letterhead? MayAttorney use Attorney's home address?

ANSWER: Attorney may withdraw as a partner in the firm andpractice from a home office. However, Attorney may not use thefirm's letterhead unless Attorney maintains an active relationshipwith the firm and the firm is actually Attorney's practice location. IfAttorney completely withdraws from the firm and practices from thehome, Attorney must use the home address on letterhead. Attorneycould also use a post office box and put that address on theletterhead.

[Rule 4 -- 7.5; 7.1]

Adv.-115

INFORMAL OPINION 950097

QUESTION: The firm is contemplating setting up a subsidiarylaw firm that would practice exclusively in a particular area of thelaw. The subsidiary would be a separate entity with a differentname, address and management. All profits would flow through tothe parent firm. The lawyers working for the subsidiary would holdthemselves out as employees of the subsidiary, not the parent.

ANSWER: The arrangement would not violate any provisionof the Rules of Professional Conduct. However, all communicationsabout each firm, would have to disclose the relationship with theother firm. Additionally, all conflicts of interest of each firm would beconsidered conflicts of both firms.

[Rule 4 -- 1.7; 7.1]

Adv.-116

INFORMAL OPINION 950106

QUESTION: Attorney asks for clarification of informal opinion940118 indicating that Attorney may not delegate thedetermination regarding whether an intended recipient of a directmail solicitation is in a mental, physical or emotional state thatmakes it unlikely the person will exercise reasonable judgment inemploying a lawyer. May Attorney make that determination whilespeaking with the person on the telephone or in person after theperson responds to the direct mail solicitation?

ANSWER: No, under Rule 4-7.3(c)(1) Attorney must make thedetermination regarding the recipient's physical, emotional ormental state before Attorney initiates any communication.

[Rule 4 -- 7.3]

Adv.-117

INFORMAL OPINION 950115

QUESTION: A life insurance agent advertises to get individ-uals to attend an estate planning seminar. Attorney makes apresentation at the seminar on estate planning. The life insuranceagent makes a presentation on life insurance. What duty doesAttorney have with regard to monitoring or directing the content ofthe life insurance agent's advertising? May Attorney hire the lifeinsurance agent for the purpose of assisting a client in funding aliving trust? ANSWER: Before participating in the seminar, Attorneyhas a duty to ascertain that the insurance agent's advertising is notfalse, misleading or deceptive. Hiring the insurance agent, for thepurpose indicated, would not involve an ethical violation as long asthe client is fully informed of the relationship and consents, theagents duties are limited to non-legal responsibilities, and the agentdoes not engage in any other activity that the attorney would beprohibited from engaging in under the Rules of ProfessionalConduct.

[Rule 4 -- 1.6; 7.2; 7.3]

Adv.-118 (See also Adv.-131)

INFORMAL OPINION 950120

QUESTION: Attorney, Pat Doe, will be a sole practitioner.Attorney would like to practice under the name The Doe Law Firm. ANSWER: It would be misleading, and therefore prohibitedby Rule 4-7.1 for Attorney to use the word "firm" when Attorney is asole practitioner. The dictionaries consulted universally define "firm"as relating to two or more people.

[Rule 4 -- 7.1]

Adv.-119

INFORMAL OPINION 950127

QUESTION: Attorney proposes to send a letter to peopleassociated with a particular charitable organization reminding theaddressees of the importance of having a will and of estateplanning, in general. The letter will be on Attorney's letterhead andwill include an informational brochure regarding estate planningprepared by the charitable organization. May Attorney send thisletter?

ANSWER: The proposed letter would constitute a solicitationunder Rule 4-7.3(a). Under that rule, the letter must contain thefollowing statement in conspicuous print: ADVERTISING MATERIAL:COMMERCIAL SOLICITATIONS ARE PERMITTED BY THE MISSOURI RULESOF PROFESSIONAL CONDUCT BUT ARE NEITHER SUBMITTED TO NORAPPROVED BY THE MISSOURI BAR OR THE SUPREME COURT OFMISSOURI. Other than the need to include this disclaimer, it does notappear that the proposed letter would violate any provision of therules.

[Rule 4 -- 7.3]

Adv.-120

INFORMAL OPINION 950136

QUESTION: Attorney submits a proposed direct mailsolicitation form letter with questions about the appropriateness ofcertain language.

ANSWER: The letter says that few people are compensatedas they should be. The letter also says that clients can usually netmore by using an attorney than dealing directly with the adjuster.These statements must be subject to ready verification by the publicor they will violate Rule 4-7.1. If Attorney does not maintain a sourceof verification of these statements which Attorney makes availableto the public, Attorney would be violating this rule. Additionally, thestatement that "You are entitled to fair compensation." does nottake into account the question of liability, and therefore may bemisleading and may create an unjustified expectation of results. Theletter fails to include the statement that the client may beresponsible for costs or expenses. Rule 4-7.3(d) requires aconspicuous statement to that effect that notifies the recipient ofthe advertising that they may be responsible for costs and expensesregardless of the outcome. The letter contains the statement that "Iwill be personally responsible for the performance of this legalservice for you." If Attorney is indicating only that Attorney will besupervising any other attorney who performs these services, thestatement is misleading. If Attorney means that Attorney willpersonally handle the case, that eliminates the concerns.

[Rule 4 -- 7.1]

Adv.-121

INFORMAL OPINION 950138

QUESTION: Attorney will incorporate under the name of "LawOffice of Pat Doe." The firm of which Attorney was previously amember was "Red, Green, Roe and Doe." Red and Green weremembers of the firm at the time of their deaths. Roe was a memberof the firm at the time Roe became a judge. May Attorney refer tothese members of the previous firm on Attorney's letterhead? MayAttorney refer to this firm as "established in 19XX" which is the yearthat the first member of the predecessor firm began practice?

ANSWER: No. The references would violate Rule 4-7.1 and4-7.5

[Rule 4 -- 7.1; 7.5]

Adv.-122

INFORMAL OPINION 950140

QUESTION: Attorney is associated with a business as anadvisor and officer. May Attorney be listed as "of counsel?"

ANSWER: It would be permissible for Attorney to be identifiedas counsel for the business, as long as Attorney is, in fact, serving inthat capacity. The use of the phrase "of counsel" would not beappropriate since that phrase normally indicates a relationship witha law firm. Use of that terminology would be misleading because itwould give the impression that the business is a law firm.

[Rule 4 -- 7.1]

Adv.-123

INFORMAL OPINION 950142

QUESTION: Attorney recently changed firms and wants tonotify former clients, whom Attorney is not currently representing, ofthe change in firms. Must Attorney include the "advertising material"disclaimer of Rule 4-7.3 in the notice?

ANSWER: Attorney may notify Attorney's former clients of thechange of firms in the form of a letter or announcement withoutincluding the "advertising material" language of Rule 4-7.3, unlessAttorney also addresses a particular matter in which Attorney knowsthat former client is involved. As long as it is just a generalannouncement or letter, the "advertising material" language neednot be included.

[Rule 4 -- 7.3]

Adv.-124

INFORMAL OPINION 950145

QUESTION: Attorney asks about entering into a relationshipwith an insurance agent in which the insurance agent would haveclients fill out an information sheet if they believe they need a will.The insurance agent would send the form to Attorney who wouldprepare a will and have the clients come in to execute it. No feeswould be split with the insurance agent and nothing of value wouldbe given to the insurance agent for the referral. The insuranceagent would provide a price list of Attorney's services.

ANSWER: The arrangement proposed would involveimproper solicitation, breach of confidentiality or both. In personsolicitation is prohibited by Rule 4-7.3(b). If the insurance agent isacting as Attorney's agent, in person solicitation would occur. If theinsurance agent is independent, Attorney would be asking someonewho is not Attorney's representative to gather confidentialinformation from Attorney's clients on Attorney's behalf in violationof Rule 4-1.6. Additionally, if the insurance agent is the one who isdetermining what specific type of estate planning the individualneeds, the insurance agent would be engaging in the unauthorizedpractice of law and Attorney would be assisting in that activity inviolation of Rule 4-5.5(b). Depending on other details of thearrangement, other rules may also be involved. Attorney would notbe violating the rules if the insurance agent merely refers thepotential client to Attorney for general estate planning, leaving it toAttorney to determine, in consultation with the clients, the specifictype of estate planning the clients need. This situation could notinvolve any fee splitting or referral fee.

[Rule 4 -- 1.6; 7.3(b); 5.5(b)]

Adv.-125

INFORMAL OPINION 950146

QUESTION: Attorney would like to establish a program inwhich Attorney would credit a client a small amount if that clientrefers a new client to Attorney.

ANSWER: The program described would violate Rule 4-7.2(c),which prohibits a lawyer from giving anything of value in exchangefor recommending the lawyer's services.

[Rule 4 -- 7.2(c)]

Adv.-126

INFORMAL OPINION 950155

QUESTION: Attorney asks about participating in a credit cardprogram which refers customers to member merchants. The membermerchant pays a fee of twenty percent for participation.

ANSWER: Based upon the information provided, Attorneywould violate Rules 4-5.4(a) and 4-7.2(c), as a participatingmerchant in the program. Rule 4-5.4(a) prohibits fee splitting with anon-lawyer and Rule 4-7.2(c) prohibits an attorney from givinganything of value in exchange for a referral.

[Rule 4 -- 7.2(c); 5.4(a)]

Adv.-127

INFORMAL OPINION 950172

QUESTION: Attorney proposes to run an investigation businesscompletely separate from the law practice. The investigationbusiness would only handle cases of a type other than any typeAttorney handles in Attorney's law practice.

ANSWER: Attorney may run the two businesses if Attorneykeeps them completely separate. Attorney's status as an attorneymay be disclosed in connection with the investigation business.Attorney may not use the investigation business to provide referralsto the law practice because this would amount to in personsolicitation prohibited by Rule 4-7.3(b). Also, Attorney will have toconsider any conflicts of either business to be conflicts of the otherbusiness.

[Rule 4 -- 7.3]

Adv.-128

INFORMAL OPINION 950188

QUESTION: Attorney proposes to send a letter to prospectivemembers of a class in a class action suit. Attorney would advise therecipients of the suit and of Attorney's availability to discuss thesituation.

ANSWER: Attorney must include the "ADVERTISING" disclaimerfound in Rule 4-7.3. Attorney should also be cautious in saying thatAttorney has filed a class action lawsuit. If the class has not yet beencertified, Attorney should modify the language to reflect that fact.

[Rule 4 -- 7.3]

Adv.-129

INFORMAL OPINION 950210

QUESTION: Attorney would participate in a program in whichAttorney would pay a certain amount to a for profit company thatwould refer to Attorney clients who call an 800 number. MayAttorney participate in this program?

ANSWER: Attorney's participation in the program wouldviolate Rule 4-7.2(c).

[Rule 4 -- 7.2(c)]

Adv.-130

INFORMAL OPINION 950216

QUESTION: Attorney proposes to send a brochure which onlyprovides general information about the firm to prospective clients.Must Attorney include the "ADVERTISING" disclaimer of Rule 4-7.3(a)?

ANSWER: Attorney will not be required to include the"ADVERTISING" disclaimer of Rule 4-7.3(a) if Attorney sends Attorney'sfirm brochure to prospective clients. However, if the brochure isaccompanied by any other communication which references aparticular type of matter in which the prospective client is believedto need legal assistance, Attorney would have to include thedisclaimer in that communication.

[Rule 4 -- 7.3]

Adv.-131

INFORMAL OPINION 950232

QUESTION: Attorney asks that Informal Opinion 950120 bereconsidered. That opinion stated that a sole practitioner could notuse the word "firm" in the name of the sole practitioner's practice. ANSWER: Although the term "firm" is defined as referring totwo or more people, it is also widely defined as a commercialenterprise without regard to the number of people involved in theenterprise. Therefore, attorney X who is a sole practitioner may usethe name "The X Law Firm." This conclusion also leads to the resultthat Attorney may use the word "firm" in the title of attorney'spractice. Based on this conclusion, Informal Opinion 950120 is nolonger valid.

[Rule 4 -- 7.1]

Adv.-132

INFORMAL OPINION 950250

QUESTION: Attorney's firm sends out a newsletter severaltimes a year to present clients, former clients, non-clients who haveasked to receive the newsletter and prospective clients. Thenewsletter summarizes recent cases or new developments in the lawthat may be of interest to those on the mailing list. Is the newsletteradvertising under Rule 4-7.2? Is the "ADVERTISING" disclaimerrequired?

ANSWER: The newsletter is advertising under Rule 4-7.2. If thenewsletter is directed to an individual prospective client or anindividual in a situation similar to one covered by the text, it wouldbe considered solicitation for purposes of Rule 4-7.3. The "contingentfee" disclaimer would have to be included, if a newsletter indicates,in any way, that the firm will accept cases on a contingent feebasis. Unless Attorney intends to evaluate the list of addresses priorto each mailing to determine that no addressee is in a situationcovered by Rule 4-7.3, Attorney should include the "ADVERTISING"disclaimer mandated by that Rule.

[Rule 4 -- 7.2; 7.3]

Adv.-133

INFORMAL OPINION 950254

QUESTION: Attorney's firm will distribute a firm brochure whichincludes inserts about various attorneys in the firm. Some of theinserts indicate that the attorney "specializes" in a particular area.Will it comply with Rule 4-7.4 if the disclaimer is placed on theoutside jacket of the brochure or the insert related to the firm as awhole?

ANSWER: Attorney's firm will be in compliance with Rule 4-7.4of Supreme Court Rule 4, the Rules of Professional Conduct, if thelanguage from that rule is included on the outside jacket or the"firm" insert. However, if any of the information sheets about theindividual attorneys are ever used or distributed individually, thedisclaimer language must be on or with the information sheet.

[Rule 4 -- 7.4]