In mid-April, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 501 clarifying the meaning of “solicitation” within the Rules of Professional Conduct. More specifically, the new opinion addressed the interplay of the general prohibition against in-person solicitation with the rules relating to misconduct and supervision of non-lawyers. While the new Formal Opinion does not represent a sea change in guidance, it provides crucial reminders about careful management of marketing practices for lawyers seeking paying clients, i.e., most of us.

Model Rule 7.3 on Solicitation prohibits live in-person solicitation of clients for the lawyer’s pecuniary gain, unless the client is another lawyer, a person the lawyer already knows or a person who routinely uses the type of legal services that the lawyer offers. There is significant jurisdictional variation from the Model Rule, with almost every state adopting a somewhat modified version. (See, ABA Jurisdictional Rules Comparison Charts) According to Comment [2], the rule is designed to prevent overreaching by lawyers particularly when potential clients are most vulnerable. The Committee found that there is continuing ambiguity about in-person solicitation by non-lawyers and whether the lawyers benefitting from the solicitation should be ethically responsible for their actions. The Committee examined these issues by way of the following four hypotheticals.