Ethics and Professional Responsibility
New Ethics Opinion Seeks to Clarify Law Firm Marketing and Client Solicitation
By Keith R. Fisher
Direct and indirect solicitation of clients is subject to limitations prescribed by the Model Rules of Professional Conduct. A recent ABA ethics opinion, Formal Opinion 501, explored some of the implications of Model Rules 7.3 (governing direct contact with prospective clients), 5.3 (detailing responsibilities regarding nonlawyer assistance), and 8.4 (enumerating instances of professional misconduct that can subject a lawyer to discipline).
In thinking about these rules, analysis should begin with the ukase in Model Rule 7.3(b) against “solicitation” via “live person-to-person contact” where the “motive” of the solicitation is the lawyer’s “pecuniary gain.” “Live person-to-person contact,” as elaborated in Comment  to that rule, includes “in-person, face-to-face, live telephone and other real-time visual or auditory person-to-person communications where the person is subject to a direct personal encounter without time for reflection” but excludes “chat rooms, text messages or other written communications that recipients may easily disregard.”
“Solicitation” is defined in Model Rule 7.3(a) as a
communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.
This definition was added by the 2018 amendments to Part 7 of the Model Rules, which also incorporated some limited exceptions to the general Rule 7.3(b) prohibition. Thus solicitation is permitted where the person contacted is (1) a lawyer; (2) one who has a family, close personal, or prior business or professional relationship with the lawyer or law firm; or (3) routinely uses for business purposes the type of legal services offered by the lawyer. These exceptions are disallowed, however, under Model Rule 7.3(c) if the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer or the solicitation involves coercion, duress, or harassment.
Notwithstanding the intent of the 2018 amendments to provide clarity in this area, Opinion 501 concluded that “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.” Specifically, these “others” may include employees of the lawyer or law firm, professional marketing firms, existing clients, former clients, friends and family of the lawyer, and even professional colleagues such as bankers, real estate agents, and accountants (but only in the context of direct, in-person solicitations). It is in this context that the opinion addressed the implications for lawyer misconduct under Rule 8.4(a) where a lawyer caused these “others” to engage on the lawyer’s behalf in prohibited in-person solicitations and for supervisory responsibilities under Rule 5.3 with respect to paralegals and other nonlawyers working for the lawyer or law firm. (Think of the Danny DeVito character in the film version of John Grisham’s The Rainmaker).