Opinion 88-19
(May 1988)

Your recent inquiry was addressed at the meeting of the Professional Guidance Committee on May 16, 1988. This will constitute the formal opinion of the Committee.
You have asked about the propriety of placing posters and brochures describing your firm's services in both auto body repair shops and medical offices. You propose to pay a rental fee to these businesses for the space used in their establishments, said rental fee not being contingent upon business being generated from the advertisements.

Rule of Professional Conduct 7.2c provides:

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 and may pay the usual charges of a not-for-profit lawyer referral service or other legal organization.

The Comment to the Rule explains that:
A lawyer is allowed to pay for advertising permitted by this Rule, but otherwise is not permitted to pay another for channeling professional work....

Your proposed advertisement appears to be in compliance with this Rule, provided you pay a reasonable rent to the businesses for the space provided for display of your posters and brochures. Too little rent could give rise to an inference that the business is providing the space you need in exchange for a promise of referral of business, and an excessive rent could give rise to an inference that you are paying for the channeling of professional work.

As a practical matter, in order to avoid any claim of in-person solicitation, the displays should be restocked by an individual who has strict instructions not to engage in any form of in-person solicitation should they be questioned by a patient or customer while restocking the display.

In 1982, the Association of the Bar of the City of New York issued a professional guidance opinion which prohibited attorney brochure display advertising in doctors' offices because of the unique doctor/patient relationship. However, the Committee felt that there has been significant liberalization in the advertising area since 1982, and that such a practice is permissible in Pennsylvania.

You should be aware of the fact that the United States Supreme Court presently has before it a case involving advertising and direct mail solicitation [Shapero v. Kentucky Bar Association]. That opinion should be decided shortly. It could impact on this opinion.

Finally, please be advised that this opinion is limited to your request on the propriety of the method of dissemination, not the actual content of your advertisement as no text was provided for review. Rules 7.1, 7.4 and 7.5 govern the content of attorney advertising and you are advised to review them to ensure your advertising text complies with their requirements.
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.