You have inquired whether the distribution of prepaid telephone card (the Card) to your clients and the public for either restricted or unrestricted use is permissible under the Pennsylvania Rules of Professional Conduct. For the reasons outlined below, the Committee believes that unrestricted use of the Card would violate Rule 7.2(c), but that restricted use as contemplated in your inquiry would not.
You have advised the Committee of the following facts: You are considering the distribution of the Card to your clients and potential clients, and characterize it as, in essence, an 800 number. The Card can be utilized in one of two ways: with restriction to certain telephone numbers and/or allotted period of time, or without restriction so that the user can call any telephone number for any amount of time.
Information concerning the use of the Card will appear on the reverse side of your existing business card and will instruct the holders how to avail themselves of the service. It is your intention to hand out your business/prepaid telephone card to your clients, new clients and/or potential clients in the same way that lawyers typically hand out business card to existing or potential clients.
Rule 7.2(c) of the Pennsylvania Rules of Conduct address the issue of advertising and states that:
A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may pay the reasonable cost of advertising or written communication permitted by this rule....
The comments to Rule 7.2 indicate that although a lawyer is permitted to pay for advertising, he is not permitted to pay another person for channeling professional work to him. Such payment would include, as the rule says, anything of value. Accordingly, Rule 7.2(c) is designed to prohibit, among other things, a lawyer from (1) enlisting and compensating surrogates to make in-person solicitations thereby avoiding violation of Rule 7.3; (2) providing referral fees to non-lawyers in violation of Rule 5.4; or (3) providing financial assistance to a client in connection with pending or contemplated litigation, except under certain enumerated conditions identified in Rule 1.8(e).
In view of the apparent marketing purpose for which the Card would be distributed, the Committee believes that unrestricted use of the Card constitutes a violation of Rule 7.2(c). Distributing the Card without restriction to clients and/or members of the public raises the appearance, if not the actuality, that some pecuniary value is being given by the lawyer to a nonlawyer in exchange for either past patronage or future consideration, or as an incentive or reward for recommending the lawyer's services to other members of the public. In all of these instances, distribution of the Card with unrestricted use violates Rule 7.2(c).
The distribution of the Card with restriction, however, does not erase the same ethical concerns. You have advised the Committee that use of the Card can be restricted to contacting your office, home or mobile phone so that clients can easily, but only, contact you. In view of this restriction, the client or potential client presumably would be calling you to discuss either a pending legal matter or a potentially new legal matter for which you have been or could be retained. The Committee believes that such restricted use of the Card is permissible under Rule 7.2(c) because under this scenario the Card has no value independent of the lawyer-client relationship, and therefore does not, in and of itself, reward a client or member of the public for recommending the lawyer's services. As such, the Card can not be used as a means of circumventing the prohibition against fee sharing with a nonlawyer (Rule 5.4), in-person solicitation (Rule 7.3) or financial assistance (Rule 1.8(e)).
The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.