Lawyers Representing Lawyers

Be Solicitous of New ABA Ethics Guidance on Solicitation

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.

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The Delaney Decision – The NJ Advisory Committee’s Redux

The Supreme Court of New Jersey recently issued its ruling and opinion in the closely watched case of Delaney v. Trent S. Dickey and Sills Cummins & Gross, P.C. (Dec. 21, 2020)(“Sills”), relating to enforcement of a mandatory arbitration agreement in the Sills engagement letter. The Court refused to compel arbitration in that case because Sills had not adequately communicated with its client about the risks and benefits of agreeing to mandatory arbitration in order to make an informed decision. The Court did not go so far as to declare all mandatory arbitration provisions in engagement letters unenforceable, as some feared it might, but it requested additional guidance from the New Jersey Advisory Committee on Professional Ethics on the scope of an attorney’s disclosure requirements in this context.

On January 18, 2022, the Advisory Committee did that and more. The Committee expanded the scope of its mandate by asking the Court to reconsider its decision in Delaney and pronounce that New Jersey lawyers are prohibited from including mandatory arbitration provisions in their engagement agreements, even with appropriate disclosures and counseling. The Committee further proposed uniform guidelines for a separate rider addressing arbitration provisions and stressed the need for oral discussion with a client and recommendation to seek review by independent counsel.

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