The Florida Bar

Ethics Opinion

Opinion 89-4

FLORIDA BAR ETHICS OPINION
OPINION 89-4
August 15, 1989
Advisory ethics opinions are not binding.
Law 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.
RPC:
Opinion:

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
86-4

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.