AUSTIN – Four years ago, the State Bar of Texas was asked a question: Can a lawyer use non-lawyer employees to attract prospective clients to booths in public places?
On April 28, the State Bar’s Professional Ethics Committee answered: Yes, but only when the non-lawyers don’t call them over to the booth. The draft opinion, PO-20-04, is open for public comment until June 27, 2020.
The question was posed because, at the time, storm attorneys were flooding flea markets and other public places with advertising booths following severe weather events, mainly hail storms.
In 2017, The Record reported on a booth the Manuel Solis Law Firm set up at a San Antonio flea market which sought prospective clients for their firm, as well as the Mostyn Law Firm, after the San Antonio area had been hit by a major hailstorm.
“Immediately after several hail storms, a lawyer sets up a booth at a public venue,” reads the statement of facts portion of the question. “The booth is staffed by a nonlawyer employee of the lawyer’s law firm … and displays photos of damaged property and phrases such as ‘AFFECTED BY HAIL?’”
The question asked if such booths were allowable under the Texas Disciplinary Rules of Professional Conduct.
The State Bar concluded the rules permit law firms to have non-attorney employees staff the booths, provided the workers don’t call visitors to the booth or initiate communication. Additionally, the non-attorney employees are also prohibited from providing legal advice and may not be paid incentive compensation for any cases generated by the booth.
“The lawyer must also make reasonable efforts to ensure that the nonlawyer employee’s conduct complies with the lawyer’s professional obligations as required by the Rules,” the State Bar’s opinion states. “The lawyer may not pay the nonlawyer staff any bonus or additional compensation for enlisting one or more clients as a result of the nonlawyer’s work at the booth.
“Finally, the nonlawyer employee should not provide legal advice to those seeking information at the booth.”
Despite it taking four years, Steven Badger, an insurance defense attorney with Zelle LLP in Dallas, says it’s “nice to see the State Bar finally” issue an ethics opinion on lawyer hail booths.
“The opinion makes clear that the ethical parameters of using non-lawyer flea market booth solicitors are very narrow,” Badger said. “They must sit quietly at the booth until approached, they cannot provide any legal advice, and they cannot be paid a success fee for bringing in client prospects or signed contracts.
“These restrictions should have a chilling effect on the practice.”
Badger hopes the restrictive limitations will restore “some professionalism” to the Texas legal profession and bring an end to the “Girl Scout cookie sales approach to soliciting clients for lawsuits.”