QUESTION: Attorney works in a non-attorney capacity for a Title Company with several Missouri offices. Attorney also practices law as an independent, general practitioner. Company receives requests for drafting documents not associated with the issuance of title insurance.

Question 1: May Title Company refer those requests to attorney?

Question 2: May attorney draft such documents in the capacity of solo practitioner, if compensated for all work directly by client and so long as client has a means to contact attorney directly?

Question 3: May other Title Company employees act as intermediaries for relaying information, if Attorney supervises those individuals?

ANSWER: Question 1. Because Attorney works for the Title Company, referrals to Attorney would be in person solicitation prohibited by Rule 4-7.3(b). The Title Company could provide people with the names of several attorneys who do that type of work, including Attorney.

Question 2. Yes. The attorney-client relationship must be direct between the attorney and client.

Question 3. In order to supervise the individuals, Attorney would have to have control and authority over them. Attorney would have to be able to take remedial measures if they acted inappropriately. That does not seem likely if they are employed by another entity. Attorney should not use employees of the Title Company to convey any information that would be considered confidential under Rule 4-1.6.

Informal Opinion 2003-0065 QUESTION: Is it permissible to advertise information workshops regarding elder law by direct mail to persons in a specific age range in a defined geographical area? What are the consequences of inadvertently mailing to a person with an immediate need?

ANSWER: It is permissible to advertise informational workshops by direct mail and to select recipients by age within a particular geographical area. As long as criteria are established and recipients known to be in need of the services are screened out, the Advertising disclaimer found in Rule 4-7.3 would not need to be included. Inclusion of that disclaimer would eliminate the need for that screening.

QUESTION: Attorney recently launched a website for Attorney's firm. A client viewed the website and offered to serve as a reference and speak to clients about the services that Attorney offers. Would this breach any ethical guidelines if Attorney were to post this information on Attorney's website? Any statements would come directly from the client with complete consent. ANSWER: It is generally permissible for Attorney to use a client testimonial in advertising, such as a website. The testimonial cannot include statements or information that would violate any of the rules regarding advertising, Rules 4-7.1-4-7.5.

QUESTION: Attorney´s firm represents creditors in their attempts to collect amounts owed to them by their debtors. Attorney has recently become aware of attorneys who are soliciting those debtors for representation in bankruptcy by sending them a letter. These letters appear to Attorney to be in violation of Rule 4-7.3. Attorney is aware that Attorney is required by Rule 4-8.3(a) to report violations of the Rules of Professional Conduct. Are the potential violations described at a level that should be reported? ANSWER: If Attorney believes that an attorney has violated the provisions of Rule 4-7.3, Attorney should report that attorney to this office so that we can make an independent determination regarding whether a violation has occurred.

QUESTION: Attorney conducts informational estate planning seminars for the public. After the seminar, Attorney would like to write to seminar attendees and offer a free legal consultation. The letter would contain the advertising disclosure provided in Rule 4-7.3(a). Is Attorney´s conduct permissible? ANSWER: Attorney may send direct mail solicitations to the seminar attendees, after the seminar. That solicitation must comply with all provisions of Rule 4-7.3(a), (c) and (d).

QUESTION: Does an ethical problem arise when Attorney, in response to a call from a potential client, meets with that potential client in a mobile law office? May Attorney enter into an attorney-client contract in the mobile office? May Attorney advertise the ability to provide the additional service of a mobile law office over television and radio? ANSWER: Attorney will not violate Supreme Court Rule 4, by meeting with a client in a mobile law office and entering into a contract with a client, if that is what the client decides. Attorney will not violate the Rules of Professional Conduct by advertising the availability of a mobile office, as long as the advertisements otherwise comply with Rules 4-7.1 - 4-7.5.

QUESTION: Attorney is involved with estate planning/living will seminars. Attorney plans to set appointments in the room following the seminar. At the end of the seminar a presenter will show a slide that reflects the cost for doing an estate plan. In addition, the presenter mentions that as a result of attending the seminar, the attendees are entitled to receive a discount certificate for Attorney´s services to reduce the cost they will pay for doing an estate plan. The presenter will tell the attendees that the discount certificate will expire within a few weeks from the date of the seminar. Is this appropriate? ANSWER: It would be acceptable to set up appointments only if it is merely mentioned as an option and all other activity in that regard is passive. The proposal Attorney has described would cross the line into personal solicitation prohibited by Rule 4-7.3(b).

QUESTION: May Attorney attend a trade show and occupy a booth which displays the name of Attorney and the name of Attorney´s firm? May Attorney display brochures and other literature ordinarily displayed in the lobby of the Attorney´s office? May Attorney discuss and answer legal questions and give legal advice to members of the public who solicit such advice from Attorney while in Attorney´s booth? May Attorney make an appointment for such a person to meet the following weekday at Attorney´s law office to possibly sign an engagement agreement or attorney/client contract? ANSWER: Based solely on the information Attorney has provided, the activities Attorney has proposed would not violate Supreme Court Rule 4. If Attorney will be consulting with individuals at a trade show, Attorney has an obligation to ensure confidentiality or be certain that the individual is not concerned about confidentiality. If Attorney will be giving specific advice or addressing specific situations, Attorney must perform a conflicts check before giving the advice. Attorney must also be certain that Attorney is only responding to contact, which has been initiated by individuals. If Attorney initiates the contact, Attorney would be engaging in "in person" solicitation in violation of Rule 4-7.3 (b).

QUESTION: Attorney´s firm plans to send a newsletter about the law office, services of the law office and legal issues. It would be sent periodically to existing clients, past clients, family of law office staff and friends of the law office staff. It is not intended for direct solicitation. It would not be sent to anyone known to have a possible claim who then would need an attorney. Would the firm be required to include the disclaimer required by Rule 4-7.3 on the newsletter? ANSWER: Attorney may send the newsletter to past clients, family of law office staff and friends of law office staff, without including the disclaimer, as long as they are not known to need legal services of the kind Attorney provides. Attorney may send the newsletter to existing clients, without the disclaimer, although they are known to need legal services of the kind Attorney provides.

QUESTION: Attorney is considering hiring a Professional Employer Organization. Employees would be hired by the organization and leased back to Attorney. This would allow Attorney to provide benefits that Attorney could not otherwise provide. Attorney would maintain complete supervisory control over the daily activities and responsibilities of the leased back employees. The only power Attorney could not exercise is the right to unilaterally terminate or discipline an employee. Would an arrangement like this be allowed under the Rules of Professional Conduct? ANSWER: Under the circumstances Attorney has described, the proposed arrangement for nonlawyer staff would create a situation in which Attorney could not fulfill the requirements of Rule 4-5.3. It would be necessary for Attorney´s firm to have unilateral authority to terminate or discipline an employee for violating an obligation under the Rules of Professional Conduct. Attorney would not need the authority to terminate their employment by the professional employer organization, but Attorney would need the authority to discipline or unilaterally terminate the lease back of an employee. As proposed, the arrangement would violate Rules 4-5.4 and 4-5.5.

QUESTION: May a business card state "No recovery, no legal fee" without stating that the client may be responsible for costs or expenses? ANSWER: Attorney must include the disclaimer that the client may be liable for costs and expenses, if Attorney includes the statement "No recovery, no legal fee" on Attorney´s business card. Although in normal practice Attorney may not disseminate Attorney´s business card without previous contact, Attorney´s business card is a form of advertising and it is not unusual for business cards to be passed along by individuals other than the attorney. Whether any use of the card would violate Rule 4-7.2 or 4-7.3 would depend on the specific circumstances.

QUESTION: Attorney recently joined a lawyer referral service. The service has informed Attorney that when the service learns of a potential accident victim, they contact the victim by telephone to let them know that if they need a lawyer, the service is available. The potential client must then call back at a later time if he or she wants to be referred to a lawyer. No referrals are made until the potential client calls the referral service. Is this procedure ethical? Specifically, does a qualified lawyer referral service under Rule 4-10.1 qualify under Rule 4-7.3(b)(2) as a public or charitable legal services organization which can initiate personal contact with a prospective client? ANSWER: With limited exceptions listed in Rule 4-7.3(b), it is improper for an attorney to solicit potential clients in person or by telephone. It is also improper for an attorney to engage in conduct through another person or entity if the attorney would violate the rules by directly engaging in that conduct. Therefore, it would be a violation of Rule 4-7.3 for Attorney to participate in a lawyer referral service which solicits potential clients for attorneys in person or by telephone. It would also violate Rule 4-7.3 for Attorney to participate in a lawyer referral service which solicits potential clients through targeted mailings because it is Attorney´s professional obligation to determine, in each situation, that such solicitation does not violate Rule 4-7.3(c).

QUESTION: Attorney has been approached by a chiropractor with a business proposition that involves Attorney providing legal services for patients solicited by the chiropractor by an on-going direct mail solicitation program operated by the chiropractor. The letter sent does not suggest that the patient must retain Attorney as a condition of receiving treatment by the chiropractor, nor does it suggest that the patient must retain the chiropractor as a condition of retaining Attorney. No fee or kick-back would be paid to the chiropractor by Attorney, but the chiropractor does use a voluntary lien that also serves as an assignment of benefits form. Is this arrangement ethical? ANSWER: The arrangement, including the lien, Attorney has described appears to involve a conflict of interest in violation of Rule 4-1.7(b). This arrangement would also be a problem because Attorney would not independently determine whether each solicitation letter is appropriate in light of Rule 4-7.3(c).

QUESTION: Attorney´s firm plans to send certain existing clients a newsletter that is an update on recent changes in the tax law. It would contain estate planning information and would not be a direct solicitation. Would Attorney´s firm be required to place "advertising material" on the newsletter? ANSWER: Based upon Attorney´s representation that the newsletter will only be sent to existing clients, Attorney is not required to include the ADVERTISING disclaimer required by Rule 4-7.3 on the newsletter.

QUESTION: Attorney is forming a firm to provide legal services to financial institutions. A CPA firm would refer financial institution clients to Attorney and Attorney would bill the institution directly for legal services. Attorney would then contract with the CPA firm on a case by case basis for the CPA firm´s personnel to handle Attorney´s administrative and paralegal work. Attorney would supervise all of the work and the CPA firm personnel would not be providing legal services for the client. Is this permissible? ANSWER: It appears from Attorney´s description that Attorney´s hiring of the CPA firm will be a quid pro quo for the referral of clients. If that is the case, the arrangement would violate Rule 4-7.2(c), which prohibits giving anything of value in exchange for a referral. Attorney may hire the CPA firm to perform Attorney´s administrative and secretarial service. However, this situation will require Attorney to make special arrangements regarding confidentiality, conflicts and the manner in which Attorney holds herself out to the public. Attorney would need to ensure that the public understands that Attorney´s law practice is independent of the CPA firm, but Attorney would also need to ensure that Attorney´s clients are aware of Attorney´s relationship with the CPA firm. Because the CPA firm will have access to confidential client information, Attorney will be responsible for the actions of the CPA firm´s staff in maintaining confidentiality. Attorney will also be responsible for making arrangements with the CPA firm to ensure that it does not undertake a representation adverse to one of Attorney´s current or former clients, if a similar representation would be prohibited under the Rules of Professional Conduct. If the CPA firm is not a completely independent business entity, the referral of clients to Attorney´s law firm may violate Rule 4-7.3(b) relating to in-person solicitation.

QUESTION: Attorney received information from a mailing service. The service offers mailing labels of new residents in Attorney´s area. May Attorney use these labels for advertising? ANSWER: Based solely on the information Attorney has provided, it does not appear that Attorney would violate Supreme Court Rule 4 by participating in this program. However, any additional information could lead to a different conclusion.

QUESTION: Attorney would like to use the internet for advertising and general legal consultations. Will this violate the rules? ANSWER: In the course of internet communications regarding Attorney´s services, Attorney is required to comply with Supreme Court Rule 4, including Rules 7.1 through 7.5, relating to advertising. Additionally, unless e-mail communications, in both directions, are secured through a quality encryption program, Attorney would need to advise clients and potential clients that communication by e-mail is not necessarily secure and confidential.

QUESTION: Do settlement figures and verdict amounts in an advertising brochure violate Rule 4-7.1 or any of its subparts? Does listing prior case results violate any existing rule? ANSWER: Prior case results, including the settlement figures and verdict amounts portion of Attorney´s proposed advertisement, are likely to create an unjustified expectation about results in violation of Rule 4-7.1(c). This type of advertising also runs a high risk of violating Rule 4-7.1(b). Attorney indicates in proposed advertising that there will be no charge unless Attorney collects. That information triggers the disclaimer requirement of Rule 4-7.2(a) or 4-7.3(d), depending on the manner in which the brochure is used.

QUESTION: Does Missouri have specific rules related to Internet advertising? ANSWER: Missouri does not have any specific rules relating to Internet advertising. The general rules on advertising apply to any form of advertising, including Internet advertising. The Missouri rules on advertising are Rules 4-7.1 through 4-7.5 of Supreme Court Rule 4, the Rules of Professional Conduct.

QUESTION: A close relative of Attorney is aware that a friend has been involved in a serious accident. May the relative inform the friend about Attorney´s services? The friend has not inquired. ANSWER: Rule 4-7.3(b) of Supreme Court Rule 4, the Rules of Professional Conduct, prohibits in-person solicitation by Attorney, or anyone on Attorney´s behalf, except in three specific circumstances. Only one of those could apply in the situation about which Attorney has inquired. The rule permits in-person solicitation if the person is a relative or close friend. Rule 7.3(a) permits Attorney to engage in written solicitation subject to the disclaimer requirements of 7.3(a) and (d) and the restrictions of 7.3(c).

QUESTION: Attorney will be speaking at a seminar for non-lawyers on the law in a specific area. The brochure will list Attorney´s name and credentials. Attorney will not be giving this program for the purpose of obtaining professional employment from the attendees. The seminar Attorney will be presenting has been accredited for continuing education credits for one or more regulated professions. Must Attorney cause the ADVERTISING disclaimer to be included on the brochure? ANSWER: Based on this information, the brochure will not constitute solicitation under Rule 4-7.3. Therefore, the ADVERTISING disclaimer will not be required.

QUESTION: Attorney would like to publish a newsletter which would be sent to current and prospective clients. The newsletter would not be otherwise targeted. The newsletter would address general legal information, updates to the law, landlord/tenant matters, estate planning, general business law matters which would be helpful to individuals and business owners. Attorney would also ask other types of professionals to write informational articles. Would the newsletter be advertising under Rules 4-7.2 and 4-7.3? Would the Rule 4-7.3(a) disclaimer be required? Could the other professionals share in the costs of publication and mailing? ANSWER: The newsletter would be considered advertising. The "contingent fee" disclaimer would have to be included, if the newsletter indicates, in any way, that Attorney´s firm will accept cases on a contingent fee basis. If the newsletter is directed to an individual prospective client or an individual in a situation similar to one covered by the text, it would be considered solicitation for purposes of Rule 4- 7.3. Unless Attorney intends to evaluate the list of addressees prior to each mailing to determine that no addressee is in a situation covered by Rule 4-7.3, Attorney should include the "ADVERTISING" disclaimer mandated by that Rule. The other professionals could share in the costs of publication and mailing.

QUESTION: A large part of Attorney´s practice involves representing businesses. Occasionally, Attorney learns of a prospective client whom Attorney would like to contact about offering Attorney´s services. Is Attorney limited to contacting these prospective clients in a writing which includes the ADVERTISING disclaimer? ANSWER: Rule 4-7.3(b) makes no distinction between prospective business clients and individuals. Attorney may not make in-person or telephone contact with prospective clients of any sort unless they fall into one of the exceptions found in Rule 4-7.3(b)(1)-(3).

QUESTION: Attorney submits an informational brochure which Attorney will send to current clients, former clients, friends and acquaintances and people who contact Attorney about the need for particular legal services. Is the brochure considered advertising under Rule 4-7.2? Must Attorney include the ADVERTISING disclaimer required by Rule 4-7.3? ANSWER: The brochure is considered advertising under Rule 4-7.2. If the pamphlet is directed to an individual prospective client or an individual in a situation similar to one covered by the text, it would be considered solicitation for purposes of Rule 4-7.3.

QUESTION: Attorney´s law firm has prepared a newsletter with information about legislative and judicial legal developments. May the law firm send out the newsletter without including the Rule 4-7.3 ADVERTISING disclaimer? Does it matter if the newsletter is going to a former client, close friend or relative? ANSWER: The newsletter is advertising under Rule 4-7.2. If the newsletter is directed to an individual prospective client or an individual in a situation similar to one covered by the text, it would be considered solicitation for purposes of Rule 4-7.3. The "contingent fee" disclaimer would have to be included, if a newsletter indicates, in any way, that Attorney´s firm will accept cases on a contingent fee basis. Unless Attorney intends to evaluate the list of addresses prior to each mailing to determine that no addressee is in a situation covered by Rule 4-7.3, Attorney should include the "ADVERTISING" disclaimer mandated by that Rule. It does not matter if the newsletter is addressed to former clients, friends and relatives.

QUESTION: Attorney will be giving a seminar for people in a particular industry. The seminar is intended to be informational in nature. Course materials and promotional material will include the name of Attorney´s firm. Will this violate the rules? ANSWER: Based on the general information provided, Attorney´s proposed conduct will not violate the Rules of Professional Conduct. Any additional facts could change the opinion. Attorney should be aware that the materials distributed at the meeting with the name and address of Attorney´s firm would be considered advertising materials. Therefore, those materials must comply with the requirements of Rules 4-7.1 - 4-7.5, including any disclaimer requirements that might apply.

QUESTION: Attorney asks if it is permissible to distribute flyers to homes and on vehicles parked in parking lots, if no personal contact is made. ANSWER: Attorney may distribute flyers on parked vehicles and doorknobs without violating the Rules of Professional Conduct. However, Attorney, or anyone who is distributing the flyers for Attorney, must not engage in conversation with people about Attorney or Attorney´s services while distributing the flyers. Such conversation would be in- person solicitation, which would violate Rule 4-7.3(b).

QUESTION: Attorney has a web page. Must Attorney include the "ADVERTISING DISCLAIMER?" ANSWER: If, by the term "web page," Attorney means a site which others must affirmatively access, it will not be necessary for Attorney to include the advertising disclaimer required by Rule 4-7.3. However, if Attorney will be actively engaged in sending the information to the individuals, by any means, it is possible that the advertising disclaimer requirement would be triggered. If Attorney is planning to actively send the materials, as opposed to establishing a passive site, Attorney will need to provide more information about Attorney´s plans.

QUESTION: Attorney´s firm represents an organization through its board. May the firm write a letter to the members of the organization, as an introduction, informing the members that the firm is representing the organization? Would it be a violation to include a paragraph explaining the other work the firm does, along with office hours? ANSWER: It would not violate the Rules of Professional Conduct, for Attorney´s firm to send a letter to the members of the organization as long as the content of that letter is truthful and not misleading. If the firm includes information beyond information related to the fact that the firm is representing the organization, it will be necessary to include the "ADVERTISING" disclaimer found in Rule 4-7.3(a). If the firm indicates that it will accept cases on a contingency fee basis, the firm must also include the disclaimer found in Rule 4-7.3(d).

QUESTION: A law firm has a partner who has years of experience in a particular industry. May the law firm make the partner available for a fee to current clients and non-clients in the industry to present educational seminars on legal issues related to the industry? May the law firm market the seminars under a fictitious name? May the partner make personal contact with friends and former colleagues to make them aware of the availabilty of these seminars? May the law firm make personal or written contact with representatives of non-clients to make them aware of the availability of these seminars? May the partner give these seminars for a business not related to the law firm if the law firm is compensated? ANSWER: Yes, the law firm may make the partner available for educational seminars. The law firm may market the seminars under a fictitious name but it would be required to disclose the relationship between the law firm and XYZ wherever XYZ is held out to the public. Under Rule 4-7.3(b), the partner may make personal contact with close friends to make them aware of the partner´s availability to present seminars. The partner or the firm may initiate contact with other friends, former colleagues, etc., to make them aware of the partner´s expertise and availability only in writing. The partner may provide seminars through an unrelated business for a fee. However, if this business will also function as a referral service, it must qualify and be registered under Rule 10.1.

QUESTION: Attorney´s firm sends out a newsletter several times a year to present clients, former clients, non-clients who have asked to receive the newsletter and prospective clients. The newsletter summarizes recent cases or new developments in the law that may be of interest to those on the mailing list. Is the newsletter advertising under Rule 4-7.2? Is the "ADVERTISING" disclaimer required? ANSWER: The newsletter is advertising under Rule 4-7.2. If the newsletter is directed to an individual prospective client or an individual in a situation similar to one covered by the text, it would be considered solicitation for purposes of Rule 4-7.3. The "contingent fee" disclaimer would have to be included, if a newsletter indicates, in any way, that the firm will accept cases on a contingent fee basis. Unless Attorney intends to evaluate the list of addresses prior to each mailing to determine that no addressee is in a situation covered by Rule 4-7.3, Attorney should include the "ADVERTISING" disclaimer mandated by that Rule.

QUESTION: Attorney proposes to send a brochure which only provides 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´s firm brochure to prospective clients. However, if the brochure is accompanied by any other communication which references a particular type of matter in which the prospective client is believed to need legal assistance, Attorney would have to include the disclaimer in that communication.

QUESTION: Attorney proposes to send a letter to prospective members of a class in a class action suit. Attorney would advise the recipients of the suit and of Attorney´s availability to discuss the situation. ANSWER: Attorney must include the "ADVERTISING" disclaimer found in Rule 4-7.3 . Attorney should also be cautious in saying that Attorney has filed a class action lawsuit. If the class has not yet been certified, Attorney should modify the language to reflect that fact.

QUESTION: Attorney proposes to run an investigation business completely separate from the law practice. The investigation business would only handle cases of a type other than any type Attorney handles in Attorney´s law practice. ANSWER: Attorney may run the two businesses if Attorney keeps them completely separate. Attorney´s status as an attorney may be disclosed in connection with the investigation business. Attorney may not use the investigation business to provide referrals to the law practice because this would amount to in person solicitation prohibited by Rule 4-7.3(b). Also, Attorney will have to consider any conflicts of either business to be conflicts of the other business.

QUESTION: Attorney asks about entering into a relationship with an insurance agent in which the insurance agent would have clients fill out an information sheet if they believe they need a will. The insurance agent would send the form to Attorney who would prepare a will and have the clients come in to execute it. No fees would be split with the insurance agent and nothing of value would be given to the insurance agent for the referral. The insurance agent would provide a price list of Attorney´s services. ANSWER: The arrangement proposed would involve improper solicitation, breach of confidentiality or both. In person solicitation is prohibited by Rule 4-7.3(b). If the insurance agent is acting as Attorney´s agent, in person solicitation would occur. If the insurance agent is independent, Attorney would be asking someone who is not Attorney´s representative to gather confidential information from Attorney´s clients on Attorney´s behalf in violation of Rule 4-1.6. Additionally, if the insurance agent is the one who is determining what specific type of estate planning the individual needs, the insurance agent would be engaging in the unauthorized practice of law and Attorney would be assisting in that activity in violation of Rule 4-5.5(b). Depending on other details of the arrangement, other rules may also be involved. Attorney would not be violating the rules if the insurance agent merely refers the potential client to Attorney for general estate planning, leaving it to Attorney to determine, in consultation with the clients, the specific type of estate planning the clients need. This situation could not involve any fee splitting or referral fee.

QUESTION: Attorney recently changed firms and wants to notify former clients, whom Attorney is not currently representing, of the 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 the change of firms in the form of a letter or announcement without including the "advertising material" language of Rule 4-7.3, unless Attorney also addresses a particular matter in which Attorney knows that former client is involved. As long as it is just a general announcement or letter, the "advertising material" language need not be included.

QUESTION: Attorney proposes to send a letter to people associated with a particular charitable organization reminding the addressees of the importance of having a will and of estate planning, in general. The letter will be on Attorney´s letterhead and will include an informational brochure regarding estate planning prepared by the charitable organization. May Attorney send this letter? ANSWER: The proposed letter would constitute a solicitation under Rule 4-7.3(a). Under that rule, the letter must contain the following statement in conspicuous print: ADVERTISING MATERIAL: COMMERCIAL SOLICITATIONS ARE PERMITTED BY THE MISSOURI RULES OF PROFESSIONAL CONDUCT BUT ARE NEITHER SUBMITTED TO NOR APPROVED BY THE MISSOURI BAR OR THE SUPREME COURT OF MISSOURI. Other than the need to include this disclaimer, it does not appear that the proposed letter would violate any provision of the rules.

QUESTION: A life insurance agent advertises to get individuals to attend an estate planning seminar. Attorney makes a presentation at the seminar on estate planning. The life insurance agent makes a presentation on life insurance. What duty does Attorney have with regard to monitoring or directing the content of the life insurance agent´s advertising? May Attorney hire the life insurance agent for the purpose of assisting a client in funding a living trust? ANSWER: Before participating in the seminar, Attorney has a duty to ascertain that the insurance agent´s advertising is not false, misleading or deceptive. Hiring the insurance agent, for the purpose indicated, would not involve an ethical violation as long as the client is fully informed of the relationship and consents, the agents duties are limited to non-legal responsibilities, and the agent does not engage in any other activity that the attorney would be prohibited from engaging in under the Rules of Professional Conduct.

QUESTION: Attorney asks for clarification of informal opinion 940118 indicating that Attorney may not delegate the determination regarding whether an intended recipient of a direct mail solicitation is in a mental, physical or emotional state that makes it unlikely the person will exercise reasonable judgment in employing a lawyer. May Attorney make that determination while speaking with the person on the telephone or in person after the person responds to the direct mail solicitation? ANSWER: No, under Rule 4-7.3(c)(1) Attorney must make the determination regarding the recipient´s physical, emotional or mental state before Attorney initiates any communication.

QUESTION: Attorney proposes to use an advertisement which includes the phrase "Sign up at seminar for free living will." The advertisement will also describe living trusts as "revolutionary" and "risk-free." ANSWER: The phrase about signing up for a free living will does not violate the rules but indicates that there is a concern about the possibility that "in person" solicitation in violation of Rule 4-7.3(b) may occur at the seminar. The use of the words "revolutionary" and "risk-free" in connection with living trusts raises concerns. Living trusts have been in use for many years and have been quite popular estate planning tools for several years. Therefore, the accuracy of the word "revolutionary" is doubtful. The term "risk-free" could be interpreted as indicating that a living trust is right for everyone, will never have adverse consequences and cannot be challenged. The accuracy of this term is also doubtful.

QUESTION: Attorney submits a brochure and asks whether it would violate the Rules. Attorney also asks whether it would be permissible to distribute the brochure to clients who come to the office and to people who would pick them up at other places of business. ANSWER: The particular brochure submitted does not violate the Rules. However, this opinion does not address possible uses of the brochure. For example, the brochure could not be used as a tool for "in- person" solicitation prohibited by Rule 4-7.3(b). It would be permissible to distribute the brochure as described as long as Attorney gives nothing of value to the other businesses for distributing the brochure. Giving something of value would violate Rule 4-7.2(c).

QUESTION: Attorney owns an interest in Corporation A. Attorney and Corporation A will share a suite of offices. Corporation A will be operated completely separately and with proper designation. Attorney will only minimally be involved in the day to day operation of the corporation. Attorney B who also owns an interest will be involved in the day to day operation and will also share the office space. ANSWER: This arrangement would not violate Rule 4-5.4. The attorneys would have to make full disclosure any time they would refer a client to the corporation. Additionally, it would constitute prohibited "in person" solicitation for the corporation to make referrals to either attorney. The attorneys must also make certain that all information related to their clients is secure from access by anyone who shares space in the suite of offices who is not part of the attorney´s firm.

QUESTION: May Attorney form a general business corporation that will not practice law but which will practice in a related area and which will solicit clients for Attorney? ANSWER: The general business corporation would be engaging in "in person" solicitation prohibited by Rule 4-7.3(b) any time it made a referral to Attorney. If a client of Attorney developed a need for services such as those provided by the general business corporation, Attorney could only refer the client to the wholly-owned corporation after making full disclosure of the relationship between the corporation and the firm and making it clear to the client that the client has the option to obtain the services from any source of the client´s choosing. Additionally, this situation raises issues of confidentiality. If Attorney does form such a corporation, Attorney must realize that it is a completely separate entity and that confidentiality of information relating to the law firm´s clients must be strictly maintained.

QUESTION: Attorney proposes to send a general newsletter to clients and prospective clients. The newsletter would be informative in nature and summarize current changes in the law. Is this advertising under Rules 4-7.2 and 4-7.3? ANSWER: The newsletters would be advertising under Rule 4-7.2. Unless the newsletters dealt with an individual prospective client or an individual situation involving a prospective client, they would not be considered advertising for purposes of Rule 4-7.3. The "contingent fee" disclaimer would have to be included, if applicable. The "advertising" disclaimer would not be necessary unless the newsletters were targeted.

QUESTION: A financial planner will make referrals to Attorney. Attorney will not give anything of value to the financial planner for the referrals. The financial planner offers to have Attorney call the client. ANSWER: The referral does not create a problem under Rule 4-7.2(c). Under Rule 4-7.3(b), after the financial planner makes the referral to Attorney, the client should initiate the contact with Attorney.

QUESTION: Attorney submits several types of advertising materials and asks whether they fall within the provisions of the new versions of Rules 4-7.2 and 4-7.3. The materials submitted include an announcement, brochures regarding seminars, cover letters with brochures, newsletters and firm resumes. Attorney also asks whether letters describing the attorneys and the firm that are sent at the request of the prospective client fall within these rules. ANSWER: All of the materials submitted are advertising materials and fall within the provisions of either Rule 4-7.2 or 4-7.3. If any of these materials contain language indicating that cases will be accepted on a contingent fee basis, they would have to include the applicable disclaimer. The materials submitted would not fall within the solicitation rule (Rule 4-7.3) and would not require the "ADVERTISING" disclaimer unless the recipient is a "person known to need legal services of the kind provided by the lawyer in a particular matter." Information sent at the request of a prospective client does not fall within the advertising rules.

QUESTION: Attorney has written a book for the public regarding a legal subject. Attorney plans to send a letter to individuals offering the book for free. Is the letter or the actual distribution 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 be included unless they are sent to "persons known to need legal services of the kind provided by the lawyer in a particular matter" within the meaning of Rule 4-7.3(a).

QUESTION: Attorney plans to send direct mailings to former estate planning clients regarding the need to update the estate plan in light of recent developments. Will this trigger the disclaimer requirement regarding solicitation of prospective clients under the provisions of Rule 4-7.3 that will become effective 1/1/95? ANSWER: No, as long as Attorney is following up on previous representation on the same matter. However, the disclaimer requirement might apply regarding contacting a former client in another situation. The question is one that would depend on the circumstances.

QUESTION: (1) Must Attorney include the disclaimer language in the new versions of Rules 4-7.2 and 4-7.3 regarding contingent fee cases even if Attorney never charges costs or expenses to the client if the case is lost? (2) If Attorney must include the disclaimer, may Attorney also explain that the disclaimer is required but Attorney will not charge costs and expenses? ANSWER: (1) Yes. (2) Yes.

QUESTION: May Attorney call businesses of a certain type and offer to send a firm resume? Attorney has had no relationship with these businesses in the past. ANSWER: Rule 4-7.3(b) permits solicitation by personal contact only in the limited circumstances found in Rule 4-7.3(b)(1)-(3). Therefore, the telephone contact with these companies would be prohibited.

QUESTION: Attorney proposes to offer a free seminar to provide information about estate planning. Attorney will describe the fee schedule and offer a free one hour consultation only to those who attend the seminar. ANSWER: Attorney may offer a free seminar but Attorney may not solicit during the seminar. Such solicitation would violate Rule 4-7.3(b). Attorney may advertise a free one hour consultation but may not limit it to those who attend the seminar.

QUESTION 1: Must Attorney make a determination of the recipient´s mental state for radio and television advertising as is required of targeted direct mail advertising? ANSWER: The determination of mental state is required by Rule 4-7.3(c) for targeted mailings under Rule 4-7.3(a) and in person solicitation (when in person solicitation is permitted by Rule 4-7.3(b)). General advertising is governed by Rule 7.2 which does not contain this requirement. QUESTION 2: Attorney represents an insurance company. May Attorney directly contact the opposing party to negotiate settlement? ANSWER: Regardless of whom Attorney represents, Rule 4-4.2 prohibits direct contact with a represented person regarding the subject of the representation.

QUESTION: Attorney would use an advertising firm to do direct marketing. Attorney would draft a form letter for each type of case. The advertising firm would use the form letter, a database of information obtained from police reports and a facsimile signature of Attorney to do direct mailings to prospective clients. ANSWER: Although direct mailing is authorized under Rule 4-7.3(a), Attorney must make the determination that none of the exceptions found in Rule 4-7.3(c) apply to the situation. Attorney also must supervise any non-lawyers who are acting as Attorney´s agents under Rule 4-5.3. This system would inherently violate both of those rules.

QUESTION: Attorney asks several questions about soliciting prospective clients. QUESTION 1. Attorney solicits in person for another type of business, recommends the person consult an attorney and later mails a letter to the person offering Attorney´s services. ANSWER: Violates 4-7.3(b). QUESTION 2. Attorney primarily works in a business which is not a law firm. Another person in that field refers a person needing legal services to Attorney. ANSWER: This would not violate the rules. Attorney must keep the law practice separate from the business and must not give anything of value for the referral. QUESTION 3. Attorney primarily works as an employee in a business which is not a law firm. Another employee in that business refers a person needing legal services to Attorney. ANSWER: Violates 4-7.3(b). QUESTION 4. Attorney primarily practices law. Attorney works on salary for a non-law firm company. An employee of the company refers a person to Attorney for personal legal work. Attorney provides notice under Rule 4-1.8 Attorney does not charge a fee but the company does. ANSWER: Violates 4-5.4 and 4-7.3(b). QUESTION 5. Attorney primarily works as a partner in a business which is not a law firm. Another partner in that business refers a person needing legal services to Attorney. The legal fee does not go to the partnership. ANSWER: Violates 4-7.3(b) plus law practice must be kept completely separate from other business. QUESTION 6. Attorney primarily works as a partner in a business which is not a law firm. Another partner in that business advises a person to see an attorney. Attorney subsequently contacts the person by telephone or mail and gives full disclosure. ANSWER: Contact by telephone would violate 4-7.3(b). Contact by mail would not violate the rules as long as none of the exceptions in 4-7.3(c) apply to the situation. The law practice would have to be kept completely separate from the other business.

QUESTION: Attorney submits a brochure and asks whether it would violate the Rules. Attorney also asks whether it would be permissible to distribute the brochure to clients who come to the office and to people who would pick them up at other places of business. ANSWER: The particular brochure submitted does not violate the Rules. However, this opinion does not address possible uses of the brochure. For example, the brochure could not be used as a tool for "in- person" solicitation prohibited by Rule 4-7.3(b). It would be permissible to distribute the brochure as described as long as Attorney gives nothing of value to the other businesses for distributing the brochure. Giving something of value would violate Rule 4-7.2(c).

QUESTION: Attorney plans to put on a free seminar on various legal issues. Attorney will advertise this seminar in the local newspaper. ANSWER: This will not violate the Rules of Professional Conduct. However, under Rule 4-7.3(b), Attorney should be certain not to engage in solicitation during the seminar.

QUESTION: Situation 1. Attorney would participate in free public seminars on legal topics with a financial planner. A fee would be paid to a marketing company to invite people to attend by telephone. Would this violate the rules? Situation 2. Attorney would pay a radio station for advertising free seminars. The amount paid would depend upon the number of people who actually attend the seminar without any connection to whether they actually hired Attorney or financial planner for services. ANSWER: Situation 1. This raises issues of personal solicitation under Rule 4-7.3(b). Solicitation of the attendees at the seminar would also violate that rule. Situation 2. This would not violate the Rules of Professional Conduct.

QUESTION: Attorney would participate in a living trust program run by a separate company. Non-attorneys who are not under the supervision of an attorney would contact the clients and gather information to prepare the living trust and would obtain a check for the company and a check for the attorney. Attorney would be a review attorney for documents sent by the company and advising the company of any changes needed to comply with Missouri law. Attorney will be compensated by the clients at a rate set by the company. Attorney is encouraged to make direct contact with the clients. Attorney will send the approved trust document or recommendations to the company. The company will send the final document to the client. ANSWER: This program would violate the following rules within Rule 4: 1.6, 1.7(b), 5.3, 5.4, 5.5, 7.3(b) and 8.4(a).

QUESTION: Are there rule violations if: (1) a lay company prepares estate planning documents including living trusts and wills; (2) an independent contractor, who is not an attorney, makes the documents available to clients, takes the information from the clients, explains and recommends the documents to the clients and submits the information to the lay company; (3) the lay company prepares a set of documents which are returned to the client; (4) the client pays the independent contractor at the time of the sale and also writes a check for an attorney who works with the lay company; (5) an attorney receives the drafted living trust and prepares an opinion letter which is sent to the client; (6) the attorney does not give an opinion on the will and may or may not prepare documents to fund the living trust. ANSWER: (1) This would constitute the unauthorized practice of law. (2) and (3) Each would be engaging in the unauthorized practice of law and aiding and abetting the other in the unauthorized practice of law. (4), (5) and (6) This would be the unauthorized practice of law and assisting the unauthorized practice of law by the lay company and the independent contractor. It would be assisting the unauthorized practice by the attorney. The attorney would also be violating Rules 4-5.4 and 4-7.3(b) as a result of the solicitation.

QUESTION: Question 1. May Attorney and a financial planner have an agreement that they will recommend each other if no exchange of fees is involved? Question 2. May Attorney generally distribute cards and imprinted pens through Welcome Wagon baskets? ANSWER: Question 1. Not if Attorney and financial planner agree to recommend each other exclusively. This kind of exclusive arrangement would involve giving something of value in exchange for referrals in violation of Rule 4-7.2(c). It would also involve personal solicitation in violation of Rule 4-7.3(b). However, if each merely expresses a willingness to accept referrals without any obligation on the part of either person, no violation would occur. Question 2. Yes.

QUESTION: Attorney has questions about several situations. (1) Client would obtain trust documents from a company which customizes them for client´s financial advisor firm. Attorney would review the document and approve it or suggest changes. (2) Attorney would be employed by the financial advisor firm and draft wills and trusts for its clients. (3) Financial advisor firm refers clients to Attorney just as any friend or former client might. (4) The financial advisor company would advertise that it has an attorney to handle certain matters for its clients. (5) Financial advisor company sets up a legal department to handle the legal affairs of the company and the company´s clients. ANSWER: (1) This raises concerns that Attorney would be assisting in the unauthorized practice of law in violation of Rule 5.5. Other problems may be raised if more details were provided. (2) This would involve assisting the unauthorized practice of law. There may be violations of Rule 7.3(b) regarding in person solicitation. There could be other problems depending on the specifics. (3) Referrals are acceptable as long as that is all that´s involved. No relationship other than that of attorney and client should exist. Rule 7.2(c) prohibits a lawyer from giving anything of value in exchange for a referral. (4) This would involve assisting the unauthorized practice of law. (5) This would be the unauthorized practice of law.

QUESTION: May Attorney contact prospective clients in person or by telephone and offer various fee arrangements? ANSWER: No. Rule 4-7.3(b) allows personal solicitation in person or by telephone only in three narrow situations. None of those situations apply to these prospective clients. Therefore, the direct contact would violate the rule.

QUESTION: Attorney accepts referrals for estate planning from insurance agents. Attorney is available in person or by telephone to answer legal questions. The agent is not obligated to recommend Attorney. The agent obtains basic estate planning information using a form and sends it to Attorney. Attorney is paid directly by the client and pays no part of the fee to the agent. Attorney reviews the information and contacts the client. Attorney prepares estate planning documents. Attorney gives the documents to the agent for delivery to the client. The agent assists the client with execution and transfer of assets. Clients are told to contact Attorney with que ANSWER: It appears the agent is engaging in in person solicitation on Attorney´s behalf in violation of Rule 4-7.3(b). Based on a review of the forms, it appears legal advice would be needed to fill them out. Since they are filled out by the agent and the client, it appears the agent is engaged in the unauthorized practice of law and Attorney is violating Rule 4-5.5 by assisting the unauthorized practice. Because the agent does not have a relationship with Attorney and is not supervised by Attorney, giving the documents to the agent for delivery would create problems with confidentiality under Rule 4-1.6 and would further involve the unauthorized practice of law.

QUESTION: Attorney would hire a marketing firm to market the attorney´s services, generally, and specifically directed to a certain occupation. The marketing firm would be paid a set fee per month and would be paid an additional per call fee on calls received each month related to the marketing efforts. The per call fee would be paid regardless of whether Attorney receives any legal business from the call. ANSWER: This proposal would not violate the Rules of Professional Conduct as long as there is no direct personal or telephone solicitation.

QUESTION: May Attorney use direct mail marketing to solicit prospective clients? ANSWER: Yes, but the inquiry cannot end there. Rule 7.3(c) prohibits such communication under certain circumstances.

QUESTION: FACTUAL SITUATION 1: Attorney will purchase information from a separate business obtained from police reports of traffic accidents. Attorney will solicit prospective clients from this information, by mail only. FACTUAL SITUATION 2: Attorney will be retained to represent drivers employed by a business in traffic ticket cases. Either the company or the drivers will retain Attorney. Attorney would charge a flat monthly fee per driver. Would this violate the rule on fees for months when a driver received ANSWER: FACTUAL SITUATION 1: This would not, as a general rule be a violation. However, special attention must be paid to Rule 4-7.3(c). It seems particularly likely that Rule 4-7.3(c)(1) would apply to some accident victims. FACTUAL SITUATION 2: This arrangement would not violate Rule 4-1.5. However, if the employer pays the retainer fee, special attention should be paid to Rule 4-1.8(f).

QUESTION: Attorney proposes to send prospective clients a letter which states that Attorney "specializes" in automobile law. The letter would also convey that people who have been injured in an automobile collision should consider hiring an experienced attorney. The letter would offer a free office conference and would indicate that the recipient may be eligible for healthcare without out of pocket expense. ANSWER: The word "specializes" would require inclusion of the Rule 4-7.4 disclaimer. Although healthcare without out of pocket expense may be available from some sources, Attorney should be aware that Rule 4-1.8(e) prohibits Attorney from advancing money to clients for expenses other than litigation expenses.

QUESTION: Attorney is leaving the firm. Attorney has two letters drafted to send to clients. One letter for clients Attorney cannot represent further because of conflicts in the new firm. The other letter gives clients the choice of going with Attorney, staying with old firm or choosing other representation. This letter indicates that Attorney is going with a new firm "specializing in" the same area of law. ANSWER: The letters do not violate the rules. However, either the words "specializing in" must be deleted or the Rule 4-7.4 disclaimer must be included. The words "practicing in" or other words which do not state or imply specialization could be used instead. The name of the new firm should be included in the letter which offers the option to go with Attorney to the new firm.

QUESTION: May Attorney contract with a marketing firm to market Attorney´s services through contact, word of mouth, flyers and periodicals? The marketing firm would be paid based upon Attorney´s gross revenues or the number of calls made to an 800 number. ANSWER: This arrangement would violate Rules 4-5.4(a) and 4-7.3(a).

QUESTION: Attorney would contact church leaders and offer to prepare wills for congregation members who meet with Attorney. The church would communicate the availability of the service through general oral or written announcements. No one-on-one solicitation would occur. The church would schedule a time when interested persons would schedule appointments for private consultation and will preparation. The church might charge a fee to Attorney for use of the facility. Fees would be paid directly to Attorney or Attorney´s agent. No promise or expression of intention to contribute to the church would be made by Attorney in advance. ANSWER: This program would not violate the Rules of Professional Conduct. It would not be a violation for Attorney to pay the church a fee which is directly related to Attorney´s use of the facilities.

QUESTION: A separate business would be established which would offer will preparation to members of churches. If the church wants to make the service available, it will announce it and schedule appointments. A certain day will be set aside for appointments at the church. Clients will meet privately with attorney and documents will be prepared and executed. Attorney will not be a part of the separate business but will be paid an hourly rate by the business for will preparation. The business would make donations to the churches. ANSWER: The arrangement would be contrary to one or more of the Rules of Professional Conduct. Depending on the exact logistics of the arrangement, it could violate Rule 1.7, Conflict of Interest: General Rule; Rule 5.4, Professional Independence of a Lawyer; and Rule 7.3, Direct Contact with Prospective Clients. The relationship and role of the independent business creates many problems.

QUESTION: Attorney enters into a relationship with a company which makes the initial contact with individuals regarding possible estate planning. Estate planning documents are drafted by a lawyer employed by the company outside Missouri. The documents and data are delivered to the attorney for review. The documents are delivered to the individual by a representative of the corporation. ANSWER: The question does not provide enough specific information for an opinion. However, a number of rules may be involved depending on the exact nature of the relationships and procedures followed. These include: Rule 1.7(b), Conflict of Interest: General Rule; Rule 5.4, Professional Independence of a Lawyer; Rule 5.5, Unauthorized Practice of Law; Rule 7.2(c) Advertising; and Rule 7.3(b), Direct Contact with Prospective Clients.

QUESTION: May attorney send a letter to potential business clients indicating that attorney has experience in a particular area and offering to be available to come to the business to be interviewed regarding experience and qualifications. ANSWER: Yes.