July 19, 2017 – Is it OK to give a discount to a client after that client sends new clients to you? If you speak at a conference and get new clients out of it, is that in-person solicitation?
Question
Have an Ethical Dilemma?
Ethical dilemmas affect every lawyer’s practice. This series of questions and answers appears each month in InsideTrack. The answers, offered by the State Bar’s ethics counsel Timothy Pierce and Aviva Kaiser, are intended to provide guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.
As a State Bar member, you have access to informal guidance in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys. To informally discuss an ethics issue, contact Pierce or Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m. to 4 p.m.
I regularly represent a contractor, and he recently asked me to give a presentation at a seminar on the construction business that was marketed as a chance to hear me speak. My client introduced me at the seminar as an excellent attorney whom he “highly recommends.”
Several of the people who approached me after the seminar became new clients, and out of gratitude, I gave my client (the contractor) a substantial discount on his next bill. I talked to another lawyer about the new business I got and was surprised when she said it wasn’t a good idea because it was in-person solicitation.
Do I have something to worry about?
Answer
The problem is not in-person solicitation; neither the lawyer’s presentation to a live audience nor the lawyer’s agreement to speak to attendees violates SCR 20:7.3(a).
Wisconsin Ethics Opinion E-94-4 explains:
A person’s decision to attend a seminar at which attorneys make presentations is the triggering event that initiates the personal contact between that person and participating attorneys. Thus, under the terms of SCR 20:7.3(c), any personal contact that ensues from the seminar would be at the prospective client’s initiation and election.
Therefore, the answer to the question is yes. Attorneys may accept as clients persons who choose to consult the attorney as a result of attending the attorney’s presentation at a seminar or other educational or client development program. This conclusion applies to seminars sponsored by law firms or others. This in no way diminishes the attorney’s responsibility under SCR 20:7.1 to make only accurate and non-misleading statements about the attorney’s services.
However, a lawyer may not give anything of value, other than money paid for ads, to someone for recommending the lawyer’s services, as set forth in SCR 20:7.2(b), which states in relevant part:
(b) A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may:
(1) pay the reasonable cost of advertisements or communications permitted by this rule;
Paragraph [5] of the ABA Comments to the Rule explains:
[5] Except as permitted under paragraphs (b) (1) – (4), lawyers are not permitted to pay others for recommending the lawyer's services or for channeling professional work in a manner that violates Rule 7.3. A communication contains a recommendation if it endorses or vouches for a lawyer's credentials, abilities, competence, character, or other professional qualities.
Thus, it is impermissible to give a discount on a bill to a client who sends other clients to the lawyer.
In Case You Missed It: Read Past Ethical Dilemmas
Ethical Dilemmas appears monthly in InsideTrack. Check out these topics from recent issues:
Contact with a Person Represented in an Unrelated Matter, June 21, 2017
When you need to talk to a witness for a case, and that witness is in jail on an unrelated matter, should you contact that witness’ lawyer before talking with the witness? Are you free to contact a person represented in an unrelated matter?
Where Are the Conflicts After a Lawyer Leaves a Firm?, May 17, 2017
When lawyers leave a firm, do they take their conflicts with them? Or do the conflicts remain at the firm after the lawyer is gone? The answer may come down to this: where is the file, and did that lawyer have help with the case?
