Ethics Opinion

Opinion No. 83-4

April 1983

Summary: A lawyer may properly provide an educational seminar to local unions and their members as to the provisions of the Massachusetts Workers' Compensation Law, even where the underlying intent and desire is that such seminars will generate legal business in the future, provided that (1) neither the lawyer nor anyone on his behalf recommends employment of the lawyer as a private practitioner for a fee and (2) neither the seminar nor advertisement for the seminar involve deceptive statements or claims.

Facts: A lawyer explains that in the course of handling several workers' compensation cases he has become aware in discussions with clients that many workers are ignorant of the workers' compensation law or their rights thereunder. The lawyer inquires if he may contact local unions and inform their leadership that he would be willing to provide a seminar, free of charge, to the membership in order to acquaint them with their rights under the workers' compensation law. In the alternative the lawyer inquires whether he may rent a local hall to give such a seminar and notify the local unions of the date and time of the seminar. The lawyer candidly notes that despite the educational format of the seminar, there would be an underlying intent and desire that such seminars would in fact generate business in the future, and inquires as to where one is to draw the line between a lawyer's professional responsibility to inform and educate the public as to their legal rights and the limitations on advertising and solicitation of business.

Discussion: The Ethical Considerations, which were not adopted by our Supreme Judicial Court, but which do give guidance as to the interpretation of related disciplinary rules, have emphasized the obligations of lawyers to educate laypersons to recognize their legal problems. See EC 2-1 and 2-2. EC 2-2 specifically recognizes that lawyers should encourage and participate in educational and public relations programs concerning our legal system but cautions that "such educational programs should be motivated by a desire to benefit the public rather than to obtain publicity or employment for particular lawyers." In addition, EC 2-5 notes that a lawyer writing or speaking for the purpose of educating members of the public should be careful to "refrain from giving or appearing to give a general solution applicable to all apparently similar individual problems, since slight changes in fact situations may require a material variance in the applicable advice ... ."
DR 2-103, Recommendation or Solicitation of Professional Employment, provides in material part:
A lawyer shall not, by direct mail or other form of personal contact, recommend employment, as a private practitioner for a fee, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer ... .
In addition, DR 2-104(A) prohibits a lawyer who has given unsolicited advice to a non-lawyer that he should obtain counsel or take legal action, from accepting employment resulting from the advice "if (1) the advice embodies or implies a deceptive statement or claim; or (2) the advice involves the use by the lawyer of coercion, threats, or vexatious or harassing conduct."
The committee finds it difficult to draw precisely the line between the lawyer's professional responsibility to inform and educate the public and the anti-solicitation proscriptions of DR 2-103. On balance the committee believes that the lawyer may properly hold the seminar using either alternative suggested, so long as he does not suggest at the seminars (or to the unions) that he or his firm be retained as counsel for particular problems or questions. It is a well-known fact that lawyers often hold seminars for laypersons (or indeed other lawyers) on legal topics where part of the motivation is to generate legal business in the future. This conduct is not impermissible in the view of the committee, so long as there is no recommendation that the lawyer be employed as a private practitioner for a fee. The committee does not, of course, pass on any constitutional implications regarding the status of DR 2-103 which may be raised by this inquiry.

Permission to publish granted by the Board of Delegates on January 19, 1983. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.