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Ethics Opinion

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RI-141

August 25, 1992

SYLLABUS

    A lawyer may not provide legal services at a seminar, which deceptively advertises the availability of personal legal advice to its attendees, where the seminar format used effectively inhibits such personal communication or legal advice.

    A lawyer may not deliver legal services at a seminar sponsored by a nonlegal organization where the fee for attendees is divided between the lawyer and the seminar sponsor.

    A lawyer may not purport to deliver legal services to attendees at a seminar at which confidences and secrets of the individual attendees cannot be preserved, there is little or no opportunity for the lawyer to communicate with attendees sufficient to enable the attendees to make informed decisions concerning their particular situations, there is no opportunity for the lawyer to exercise independent professional judgment regarding options more suitable to a particular attendee, and the attendees are urged to execute legal documents at the seminar without being afforded an opportunity for independent legal advice.

    References: MRPC 1.2, 1.4(b), 1.6, 5.4(a) and (c), 7.1(a); RI-81, RI-99; CI-313; State Bar v. Cramer, 399 Mich 116 (1976).

TEXT

A national organization for senior citizens, concerned that older individuals have failed to leave appropriate instructions to their loved ones concerning the right to terminate health care or how to handle finances in the event of the individual's disability, has developed or selected forms for a durable power of attorney for financial management and a health care directive, which the organization calls "advance directives." The organization proposes to initiate a publicity campaign to explain why the issue of self determination is important, and to have a local lawyer conduct a seminar at which attendees will be given information about the advance directives and obtain answers to their questions, and at which the attendees will execute their own personal directives. The organization will charge each attendee $15.00, and proposes to pay the seminar leader one-third of the moneys collected.

A lawyer asks about the propriety of participation at the seminar.

Previous opinions have discussed the propriety of lawyers participating at seminars on legal topics, and held that the mere presentation of general legal information in an educational setting is not improper. RI-99, RI-81; CI-313. Nor is it improper for nonlawyers to provide legal forms and general instructions for completing the forms, State Bar v. Cramer, 399 Mich 116 (1976).

If the proposed seminar were a mere informational gathering, it would serve a useful public purpose and should be encouraged. However, the nature of the proposed seminar goes beyond mere information dissemination. The program materials state in part:

    "The workshop is unique in several important ways. It goes beyond the purely informational seminar - attendees walk out of the workshop with fully executed legal documents . . . .

    ". . .

    "The workshop provides an accessible forum, avoids the need to set up an individual appointment with an attorney, and helps to get past the often cited excuse, 'I want to do this, but I am just not ready yet.'" Emphasis added.

One of the promotional techniques used to encourage attendance is the advertised availability of personal legal advice at the seminar. The program materials indicate that each workshop "is limited to 50 or fewer people at a time, so large organizations may have multiple programs." In a seminar format with the lawyer as the seminar leader taking questions from the audience, there is in reality little or no opportunity for the lawyer to give personal legal advice to the attendees. A lawyer's participation in such a program, implicitly condoning a public communication which misleads or creates unjustified expectations for the program's attendees, violates MRPC 7.1(a).

MRPC 5.4(a) prohibits a lawyer from sharing legal fees with nonlawyers. If program attendees are charged $15.00 per person, by the seminar sponsor, and the amount is split between the lawyer and the seminar sponsor, MRPC 5.4(a) is violated.

MRPC 5.4(a) states:

    "(a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that:

      "(1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death to the lawyer's estate, or to one or more specified persons;

      "(2) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may pay to the estate or other representative of that lawyer the agreed-upon purchase price pursuant to the provisions of Rule 1.17; and

      "(3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement."

There is no way to preserve confidences and secrets between the lawyer and the attendees seeking advice concerning the advisability of their respective execution of the prepared documents, where the lawyer is fielding questions in an open seminar format. This arrangement is clearly violative of MRPC 1.6.

Where there is no feasible way in a seminar format by which the lawyer can properly counsel an attendee regarding other options which may better serve the attendee's interests, the scope of the lawyer's representation of the attendee is being improperly abridged and violates MRPC 1.2. This systemic inhibition of personal communication between lawyer and attendee also violates a lawyer's duty to explain a matter to the extent reasonably necessary to permit the attendee to make informed decisions about the representation.

MRPC 1.4(b) states:

    "(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."

The lawyer's independent personal judgment regarding more appropriate legal forms or suggested action is eliminated where the seminar has certain prepared legal forms which are to be used by all attendees regardless of their individual circumstances.

MRPC 5.4(c) states:

    "(c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services."

It is clearly the intent that the attendees execute the forms at the seminar. As such, there is no opportunity for the attendee to seek additional independent counseling or input. Coercion and duress are clearly present where the program materials acknowledge that the seminar is designed to "get past the often cited excuse, 'I want to do this, but I'm just not ready yet'" and further states that "advance directives must be made while one is mentally alert." It would be unethical for a lawyer to participate in a program which compels attendees to make legal decisions before they are ready. No amount of preseminar publicity designed to "advise those planning to attend as to what they must be prepared for" can adequately prepare attendees, when the attendees have not yet heard the substantive information or had the opportunity to ask questions regarding their particular situation.

Therefore, even if the lawyer was willing to participate at no fee, participation in the proposed workshop as presently constituted would be improper.

 
     

 

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