I’m one of those people who, if I have a 1 pm and it is 12:40, typically cannot do anything productive with those 20 minutes. Today, that meant I spent some quality time on social media.

The algorithm served me an ad for some conference on “family law acquisition.” I guess the ad did a little bit of its job, in that it caught my attention, and, my 1 pm call ended up getting pushed to 1:20 so I had some time to do a little digging.

The gist of the ad I viewed is that family law attorneys should be relying on “non-attorney salespeople” to close high-net-worth divorce cases, presumably so the attorneys could work on their cases and make more money.  As I do not wish to book a call to find out if this two-day seminar (which costs an amount of money not disclosed in the ad or on the advertiser’s website, and would require out-of-state travel) is right for me, there seems to be no good way for me to find out exactly what they’re teaching about the use and supervision of such salespeople, but hey, it prompted this blog entry.

Lawyers employ and contract with all kinds of nonlawyer assistants—paralegals, administrators, IT, accounting, marketing. So why not salespeople?

Lawyers and law firms are free to hire someone whose job it is to acquire clients and close the deals.  

The American Bar Association issued an opinion (No. 506) in 2023 interpreting its Model Rule 5.3 (pertaining to nonlawyer assistance) in the context of client intake. While the opinion is not specific to “closing the deal,” some important points can be gleaned.

The lawyer may delegate certain intake tasks following appropriate training and policies, and with appropriate supervision, but cannot delegate tasks constituting the “practice of law.” Tasks that may be delegated include obtaining initial information, performing a conflict check, determining whether the assistance sought is within the areas of law the lawyer practices, answering general questions about the fee agreement or how representation works, and obtaining signatures.

However, a nonlawyer “salesperson” cannot provide legal advice, which the opinion states also includes advice as to what specific services the prospective client may need from the lawyer and negotiating the fee. In the family law context suggested by the social media ad, this might include advising the prospective client as to whether a trial will be necessary, or whether a prenuptial agreement will need to be contested.  

If you do employ a salesperson, you (as the lawyer) need to be available to answer questions. You don’t have to provide immediate, in-the-room or on-the-Zoom supervision (which would defeat the point of hiring a salesperson in the first place), but you should be reasonably available.

I would also add, that to the point that a non-lawyer salesperson is providing communications regarding a lawyer’s services (as governed by Rules 7.1-7.3, or Wisconsin Supreme Court Rules 20:7.1-7.4—be careful, rules differ greatly between jurisdictions), the salesperson will need to be trained in what they can and cannot say.  They need to present accurate information that is not misleading (including by omission), and they cannot make promises that the lawyer can’t keep or create unjustified expectations.  

And, some of the sales tactics that may be useful in, say, selling cars or timeshares will be inappropriate in a family law (or pretty much any law) setting.  Clients are free to choose their lawyers and should not be pressured or coerced.

Finally, how to pay a nonlawyer salesperson? SCR 20:5.4, whose stated purpose is preserving the professional independent judgment of a lawyer, broadly prohibits lawyers from sharing fees with nonlawyers, outside of including employees in a profit sharing plan and some other exceptions that do not apply here. So, paying a commission based on revenue is out.

A 2012 Wisconsin disciplinary case, In re Weigel, 2012 WI 71, did find that it was permissible for a lawyer to pay a bonus to a paralegal that reflected a percentage of revenue generated from a particular practice area, as it was not based on specific fees from specific cases and there was no evidence that any specific client was affected.

Compensation should be disconnected from the fees that the client ends up paying. Some ways to do this might include a salary/hourly wage (for an employee); a per hour/per month consulting fee (for a contractor); or, perhaps a flat fee per engagement signed (that is not related to the amount of the lawyer’s fee, however calculated).  Rules are going to vary on this by situation and jurisdiction, so be careful.

I haven’t focused on the wisdom of hiring a salesperson. That’s a business decision (and maybe one that the seminar will cover). But as an aside, the idea of a law firm employing someone with the title of “salesperson” is off-putting to me. I don’t really know why. I started practicing in 2009. I was not quite two years old when Bates v. State Bar of Arizona upheld the rights of lawyers to advertise, and in doing so upended the notion that lawyers’ “sense of dignity and self-worth” meant they could not have an economic motivation. I don’t stand on ceremony. “It seems icky” is a me problem, and certainly not an ethical issue.  

Will clients be similarly put off? Does anyone who uses salespeople want to weigh in on this?