Q: Dear Ethics Lawyer, I have contacts with a trade association which has asked me to present two seminars a year and to prepare a monthly summary of significant legal developments for its members. In exchange, the association will endorse and recommend my firm to its members on its website and in member communications. May I enter into such an agreement?
A: This question implicates Model Rule 7.2, which regulates communications about a lawyer’s services through any media. The various state enactments of the rules concerning attorney solicitation and advertising (Rules 7.1-7.3) vary substantially, so please examine the rule in effect in your jurisdiction. The current version of Model Rule 7.2 states that a lawyer shall not “compensate, give or promise anything of value to a person for recommending the lawyer’s services,” with some exceptions not relevant here. Is the commitment to provide seminars and monthly summaries one to give or promise a “thing of value?” The Ethics Lawyer submits that it could well be so construed. See, e.g., Ind. Ethics Op. 2008-4 (2008) (lawyer donating services at charity auction must have no ongoing professional relationship with sponsoring charity so donation is not considered thing of value given in return for recommendation of employment).
It is common for lawyers and law firms to provide seminars and free legal publication-type information to trade groups, including groups of corporate counsel, to raise their profile, demonstrate expertise and network. The better practice is to let the presentations and materials speak for themselves as to the expertise of the lawyer or law firm, without a specific agreement tying them to an exchange for a “recommendation.”