The Florida Bar
OPINION 89-4Law firm may not allow its nonlawyer marketing director to solicit business for the firm in any manner forbidden to lawyers themselves. Nonlawyer marketing director may not be paid commissions representing a percentage of fees generated from business brought to the firm by him.
(August 15, 1989)
(August 15, 1989)
RPC: 4-5.3; 4-5.3(c); 4-5.4(a)(3); 4-7.1; 4-7.4(a); 4-7.6(a); 4-7.1 through 4-7.7
The inquiring attorney's law firm wishes to hire a nonlawyer to solicit legal business for the firm. The lawyer expresses his view that while advertising is unprofessional and should not be allowed, straightforward solicitation should be permitted. In this regard the attorney presents several questions:
1. Can the firm hire a nonlawyer to solicit business?
2. Can the firm pay the nonlawyer either a straight salary, a salary plus commission or a straight commission?
3. Are there any new rules, regulations or guidelines that govern?
4. May the firm provide the nonlawyer with a business card indicating that the nonlawyer is a solicitor, a sales person, a production manager, or is involved in marketing?
1. An attorney may hire a nonlawyer to do only such solicitation as the attorney himself is permitted to do by the Rules of Professional Conduct. The rules do not permit in-person solicitation or telephone solicitation by a lawyer or by any agent of the lawyer. The prohibition against in-person and telephone solicitation is set forth in Rule 4-7.4(a). If a lawyer orders a nonlawyer employee to engage in conduct that would be a violation of the rules if engaged in by the lawyer, or if the lawyer ratifies such misconduct, under Rule 4-5.3(c) the lawyer is held responsible for the misconduct. All that the rules would allow a nonlawyer "solicitor" to do on behalf of the inquiring attorney's firm is manage whatever marketing activities the firm may wish to undertake in conformance with Rules 4-7.1 through 4-7.7 of the Rules of Professional Conduct. These include advertising in public media and through direct mail campaigns.
2. A nonlawyer hired to engage in permissible marketing activities on behalf of a lawyer may be paid a straight salary. If commissions would be tied to legal fees derived from business brought to the firm by the nonlawyer's efforts, payment of those commissions would constitute a violation of Rule 4-5.4(a)(3), which forbids a lawyer to divide a legal fee with a nonlawyer.
3. The rules that govern are those identified above: Rules 4-7.1 through 4-7.7 (advertising and solicitation); Rule 4-5.3 (conduct of nonlawyer employees); and Rule 4-5.4(a)(3) (dividing a legal fee with a nonlawyer).
4. It is permissible for nonlawyer employees to be issued business cards that clearly indicate their nonlawyer status. This Committee so ruled in Opinion 86-4. Thus the nonlawyer "solicitor's" business cards must carry a disclaimer such as "not a member of the Bar" or "not a lawyer." Neither of the titles suggested by the inquiring attorney-"solicitor," "sales person," "production manager"-is permissible for the nonlawyer's business card. The first two refer to activities that the attorney cannot ethically permit the nonlawyer to do, and thus are misleading in violation of Rule 4-7.1 and 4-7.6(a). Neither permissible advertising nor impermissible solicitation is synonymous with production management, so the third term also is misleading. "Marketing director" would be an appropriate title for a nonlawyer employee responsible for permitted marketing functions.