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.
Most lawyers will likely find the first and third hypotheticals to be fairly straightforward violations of the Rules. In the first scenario, a lawyer who obtains a list of people who were recently arrested and then contacts them by phone, is fairly obviously violating the Rule. In the third, a paralegal whose firm allows the paralegal to work part-time as a paramedic because of the potential to recruit clients, is also a pretty clear violation of Rule 7.3 by a paralegal working on behalf of a lawyer. The Committee also pointed out the firm’s violation of Rule 5.3 by failing to adequately train the paralegal regarding the operation of the Rules.
- A lawyer obtains a list of recently arrested people and then contacts them by phone;
- A lawyer accepts referrals from a lead generation service which makes direct contact with prospective clients;
- A paralegal provides an employer with referrals obtained from a part-time position as a paramedic; and
- A lawyer requests a friend provide the lawyer’s contact information to others the friend meets in a position as a banker.
Some lawyers may find the Committee’s conclusion on the second hypothetical to be more jarring, or at least a reminder to review firm policies on marketing and lead generation. The lawyer whose marketing department hires a lead generator is unaware that the lead generator has its employees monitor chat rooms for family member survivors of major disasters. The employees research the chat room participants and contact them to ask if they are seeking representation. The lawyer accepts the referrals without investigating the marketing practices. The Committee concluded that the lawyer is violating the Rules because the in-person contact was (i) initiated by the lead generator on behalf of the lawyer, (ii) the individuals were targeted because of their need for legal services in a specific matter, and (iii) the purpose of the contact was for the lawyer’s pecuniary gain. Key to the Committee’s analysis was that the lawyer was willfully blind to the lead generator’s methods and did not attempt to make the lead generator aware of the prohibition against direct solicitation.
The final hypothetical is also instructive for marketing practices. In this scenario, a lawyer asks a banker friend to provide the lawyer’s name and contact information to customers or bank employees seeking help with estate plans. In this case, the Committee did not find a violation of Rule 7.3 because the lawyer does not target a specific person in a particular matter and does not communicate directly with the person. Furthermore, the lawyer does not have authority over the banker’s conduct and does not control when or if the banker provides the contact information. Importantly, the Committee found this conduct to be similar to a referral by a lawyer’s clients to friends or family that they know to be in need a lawyer’s services.
What should you consider doing in light of this new Formal Opinion?
- Familiarize yourself and those under your supervision with your jurisdiction’s version of Rule 7.3;
- Create policies and procedures within your law office to ensure compliance with the Rules of Professional Conduct and specifically the prohibition on in-person solicitation of prospective non-lawyer clients.
- Think broadly when considering your responsibility. The scope goes beyond your employees and extends to your marketing team and the vendors they hire to assist with client referrals. Ensure that you understand the tactics that vendors are using to obtain clients on your behalf.
