Advisory Opinion:
2074
Year Issued:
2004
RPC(s):
RPCs 1.7(b), 1.8(a)
Subject:
Participation in an advertising program or contract offer by a local newspaper
The inquiring lawyer received an e-mail and telephone contact from the Chief Operating Officer of a newspaper. The newspaper suggested the possibility of certain business arrangements related to legal advertising, including both legal notices to creditors and lawyers’ direct advertising to potential clients. The newspaper proposes (1) a contract committing the law firm to a set volume of legal advertising on an annual basis, in exchange for a lower rate for the advertising; and/or (2) a “value added” program in which, for a certain volume of paid legal advertising placed by the firm, the newspaper would provide the firm with a certain volume of free advertising for the law firm to use for itself.
Both of these proposed arrangements implicate RPCs 1.7(b) and 1.8(a). The first arrangement creates a pecuniary interest that is potentially adverse to the lawyer’s clients, not all of whom are required to publish legal notices. It may influence the lawyer to advise clients to purchase unnecessary advertising. If the rate reductions are substantial, bringing them below the cost of competing newspapers, and the volume requirement does not exceed what the lawyer typically runs in advertising, the arrangement may be reasonable.
The second arrangement, offering “added value” for publishing legal notices, also creates a potential conflict of interest. Although the inquiry does not indicate the terms of the proposed contract, the Committee notes that there is a risk that this arrangement would simply shift the cost of the law firm’s own advertising to the firm’s clients. If so, the arrangement would violate RPC 1.8(a), regardless of whether the client consented, because it would not be “fair and reasonable” to the client.
The inquiry does not present sufficient information for the Committee to evaluate all of the variables these proposals present. Whatever the terms, the lawyer must initially assess whether he reasonably believes the representation will not be adversely affected (RPC 1.7(b)) and whether the terms of the contract will be “fair and reasonable” to his existing (and future) clients (RPC 1.8(a)). If the lawyer believes these conditions can be met, the lawyer must also provide full disclosure (in writing per RPC 1.8(a)(1)) and obtain consent from the client (in writing per RPC 1.7(b)(2)) to the arrangement.
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