Despite the 2018 amendments to ABA Model Rule 7.3, ambiguity remains concerning a lawyer’s ethical responsibility for the lawyer’s actions and for the actions of others who engage in live, person-to-person solicitation with specific individuals. The scope of “others” who might solicit on behalf of a lawyer could include, for instance, current employees of the lawyer, marketing firms hired by the lawyer, existing clients, former clients, friends and family of the lawyer, or even professional colleagues such as bankers, real estate agents, and accountants.

In order to provide further guidance, the Standing Committee on Ethics and Profesional Responsibility examines the contours of the Rules through four hypothetical situations:

In Hypothetical 1, a lawyer obtains a list from the local sheriff of persons arrested within the last week, calls them on the telephone, and offers to provide general legal services. Where none of the arresstees are lawyers themselves and have no prior relationship to the soliciting attorney, such conduct violates Rule 7.3(b).  “The offer to provide ‘general legal services’ reasonably can be understood by a prospective client as offering to provide legal services for a particular matter of which the lawyer has knowledge, i.e., the arrest. The communication by telephone was live and person-to-person, falling within the ambit of the Rule and was made for the lawyer’s pecuniary gain.”

In Hypothetical 2, a lawyer hires a professional lead generator to generate leads in mass tort cases. The agreement includes no information on how the lead generator obtains leads, nor does the lawyer provide any direction or limitation on such services. In practice, the lead generator pays its employees to ‘lurk’ in online chat rooms set up for family members and survivors of aviation disasters, medical device and drug product liability matters, and other possible mass torts. The lead generator also pays its employees to research the family members and survivors and telephone those persons to inform them of the lawyer’s experience and availability in mass tort cases. The lead generator also asks these same persons if they would like to be represented in their cases. The Committee finds that this conduct violates the Rules. “The telephone calls were initiated by the lead generator on behalf of the lawyer based on the contractual relationship between the lawyer and the lead generator…. The communications were live and person-to-person and made for the lawyer’s pecuniary gain…. The lawyer, with direct supervison over the lead generator, has made no effort to ensure that the lead generator, specifically hired to generate clients, understood and would conform its actions to be compatible with the lawyer’s professional obligations. By failing to train the lead generator concerning the limitations on direct solicitation contained in Rule 7.3, the lawyer violated Rule 5.3(b), and by accepting the leads, knowing they were generated through prohibited solicitiation, the lawyer ratified the conduct of which he had knowledge and violated Rule 5.3(c).”

In Hypothetical 3, a paralegal works as a paramedic on weekends. No lawyer ever apprised the paralegal of any prohibitions or limitations on soliciting firm business. The paralegal hands the law firm’s business cards to injured people transported by the ambulance from accident scenes and states that the firm handles accident cases and is available to help them. When the firm agrees to represent new clients, the firm requests that the new clients list where they heard about the firm. Several new clients state they received business cards from the paralegal during the paralegal’s paramedic work. After being told by the paralegal of how the law firm’s cards were being distributed, the paralegal’s direct supervisory lawyer congratulated the paralegal on bringing in new business and promised a bonus as a reward.  According to the Committee, this conduct violates the Rules. “The paralegal initiated live person-to-person contact, on behalf of the law firm employer, with injured persons being transported from an accident scene whom the paralegal knew had a specific need for legal services. Further, the law firm ratified this solicitation by knowing how the clients were solicited and still accepting clients from the paralegal’s solicitation. The paralegal’s communications were for the pecuniary gain of the law firm, and the injured persons could reasonably have understood the communications as offering legal services.”

In Hypothetical 4, a lawyer asks a personal friend and colleague who is a banker to provide the lawyer’s name and contact information to any banking customer or employee that the banker thinks might need an estate plan.  According to the Committee, this conduct does not violate the Rules.  “The lawyer did not target a specific person the lawyer knew or reasonably should have known was in need of legal services in a particular matter, nor communicate or direct communications with that person. The lawyer has no authority over the banker’s conduct, does not control either the content of any communication the banker makes nor even whether any communication occurs at all. The banker’s communication with bank customers should not reasonably be construed as an offer to provide legal services, because the banker is not authorized to make that offer on behalf of the lawyer. The communication, if one occurs at all, is a recommendation, the type of “word-of-mouth” referral that is permissible under Rule 7.3. Moreover, because the lawyer is not directing what the banker should say and the banker’s customers are not speaking directly to the lawyer, the lawyer’s request to the banker is permissible.

“Similarly lawyers who build their practices based on referrals by satisfied clients may suggest to clients that if they are happy with the lawyer’s services, the clients should give the lawyer a favorable review online and let their friends and family know about the lawyer. Such satisfied client recommendations to the public or directly to the client’s friends and family are permissible.”

 

ABA Formal Opinion No. 501  (April 13, 2022).