- It’s hard to overstate how far regulation of lawyer advertising and solicitation has come in the last generation or so.
There’s probably no part of lawyering that has changed more in the last generation than advertising and marketing.
I was reminded of these changes by a recent, very helpful ABA ethics opinion on lawyer solicitation, as well as a 50-state review of the rules on solicitation I recently undertook for a client. The opinion provides very helpful reminders for us, plus it’s the ABA ethics committee’s first-ever treatment of ethics issues arising in the use of lead generators.
My national review of solicitation rules also found a few surprising things in the varied landscape of rules now in place across the country.
It’s hard to overstate how far regulation of lawyer advertising and solicitation has come in the last generation or so.
The U.S. Supreme Court’s 1977 decision in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), recognizing a lawyer’s First Amendment right to advertise, launched this current era. But even when I started practicing in the mid-1980s, the bar establishment still very much looked down upon advertising lawyers.
The most senior partner in my law firm in those days even shared in the Tennessee Bar Journal his view that no single thing had contributed more to the decline of the profession than advertising.
Maybe so or maybe not, but today it’s hard to find a lawyer in private practice who does not have a marketing and business development strategy that includes many elements, from advertising to social media, which would have made my now-deceased partner cringe (and some that might have been outlawed before Bates).
As I reported in this space several years ago, in “Time for a Change in the Lawyer Ad Rules” (March/April 2019), in 2018 the ABA significantly updated—and slimmed down—the particular Model Rules of Professional Conduct that govern advertising.
The jurisdictions have been slow to adopt these but a few have, and there still remains the most remarkable—and maddening— variety of ethics rules on advertising.
If you want to nerd out on this wild diversity of rules, do an online search for “Differences Between State Advertising and Solicitation Rules and the ABA Model Rules of Professional Conduct.”
Those 2018 changes to the ABA Model Rules of Professional Conduct only tinkered around the edges on solicitation.
Today’s ABA Model Rule 7.3 prohibits all “live person-to-person” solicitation by a lawyer or anyone acting on their behalf, directed to a specific potential client to solicit professional employment in a particular paying matter, where the potential client has not initiated a contact with the lawyer. Solicitation includes live in-person, telephone or electronic contact. But solicitation does not include contact in chat rooms, text messages or other written communications, such as email or direct U.S. mail.
This broad prohibition is subject to three main exceptions: 1) prospective clients with whom the lawyer has a family, close personal or a prior professional relationship; 2) other lawyers (whether they serve as in-house counsel or outside counsel); and 3) people involved in businesses that routinely use the type of legal services the lawyer offers.
ABA Formal Opinion 501, Solicitation (April 13, 2022), first walks through the basic structure and content of the ABA’s ban on what it defines as solicitation. Along the way, it makes a key point: Model Rule 8.4(a), in place everywhere, has always banned lawyers doing through others what they cannot do themselves, including prohibited solicitation. That ban reaches those the lawyer directly employs or supervises in their law firm—or those hired to do marketing work (or chase ambulances).
While the disciplinary liability is not vicarious, it certainly includes conduct directed or ratified by the lawyer or conduct the lawyer reasonably should have known was happening. Supervision and oversight are required by the Rules, including Model Rules 5.1 and 5.3. Failure to appropriately supervise is an ethics violation.
The committee then turns to four hypotheticals.
In the first, we learn (with luck, we already knew) that it violates Rule 7.3 for us to get a list of those arrested by our local sheriff last week and call them, unsolicited, to offer them general legal services. The committee helpfully notes that none of the arrested include former clients or family members.
The second hypothetical involves a lead generator hired by a lawyer. The lawyer provides no direction or instructions to the lead generator, who lurks in chat rooms for family members and survivors of aviation disasters and victims of medical devices and products involved in mass tort claims. Lead generator personnel research the backgrounds and family members of the participants and then telephone them to tout the lawyer’s experience and availability in mass tort cases.
On receiving the leads, the happy lawyer says, “I don’t know what you are doing, and I don’t care! Keep ’em coming!” The lead generator responds, “We just call the people who are online discussing accidents.” The lawyer does not inquire further, signs up the clients and continues to use the lead generator.
That violates the Rule, the committee tells us, because the lawyer has ratified, and then directed or encouraged, conduct that violates the Rule. Not to mention that the lawyer has abdicated their supervision obligation altogether.
In the third hypothetical, the Opinion examines the use of a firm paralegal who works part time on weekends as an ambulance paramedic and hands out firm business cards to injured accident victims. The firm learns this, accepts the cases that come in this way and congratulates the paralegal. No surprise that ambulance chasing (even from within the ambulance) by firm personnel violates the Rule.
Finally, in the fourth hypothetical, the committee blesses what may be the most classic form of business development known to lawyer-kind. The lawyer has a personal friend and colleague who is a banker. That banker provides the lawyer’s name and contact information to any banking customer or employee the banker thinks might need an estate plan. Not a violation of the Rules; instead, a blessing to the lawyer’s practice.
From my own review of existing solicitation rules not that long ago, here are a few of the interesting things I found:
Most (48) jurisdictions have adopted exceptions to solicitation bans for prospective clients with whom the lawyer has a family, close personal or prior professional relationship.
Most (40) jurisdictions explicitly permit solicitation directed to other lawyers.
But only eight states—Arizona, Connecticut, Iowa, Maine, Massachusetts, New Hampshire, Rhode Island and Wyoming—have adopted an exception generally directed at businesses that are regular users of legal services.
A number of jurisdictions—the District of Columbia, Oregon, Utah, Virginia and Washington—have now rejected the Model Rules approach and more broadly permit solicitation. Utah is the only state that does not regulate solicitation whatsoever. The District of Columbia, Oregon, Virginia and Washington allow solicitation under most circumstances, while still prohibiting solicitation involving coercion, duress or harassment.
Oregon, Virginia and Washington specifically ban solicitation of individuals who have indicated a desire not to be solicited by the lawyer, and the District of Columbia, Oregon and Washington prohibit solicitation of individuals in a state of diminished capacity. Further, Virginia notes that the propriety of any solicitation is “judged by the totality of the circumstances under which it is made, including the potential client’s sophistication and physical, emotional, and mental state, the nature and characterization of the legal matter, the parties’ previous relationship, the lawyer’s conduct, and the words spoken.”
Of course, in virtually every jurisdiction, solicitation cannot involve coercion, duress or harassment, even when otherwise permitted under the ethics rules. In addition, lawyers cannot solicit individuals who have communicated a desire not to be contacted.
Even the more permissive jurisdictions identified above retain other ethics rules that would likely continue to bar some kinds of solicitation. For example, 12 jurisdictions (Colorado, Connecticut, District of Columbia, Hawaii, Illinois, Indiana, Kentucky, New Jersey, New York, South Carolina, Tennessee and Texas) have imposed specific waiting periods—typically 30 days—for solicitation following certain events, such as car accidents or natural disasters.
All jurisdictions would also likely believe it to be misconduct if a lawyer approached a potential client at an accident scene or in a hospital or emergency room, if the client alleged that the circumstances were at all coercive.
Georgia, Maine and New Jersey have in place far broader prohibitions against solicitation. Georgia prohibits solicitation of nonlawyers through direct personal contact or through live telephone contact completely, regardless of the lawyer’s relationship with the individual or the individual’s business background. Similarly, Maine prohibits all direct solicitation of noncommercial clients.
New Jersey’s rule is particularly idiosyncratic: Lawyers cannot make any direct contact with prospective clients regarding specific events unless the contact concerns a mass disaster event. That said, however, lawyers must wait until 30 days after a mass disaster event to initiate contact.
Of course, these rules are constantly in flux, so please don’t rely on any of these data points without checking to see if the rules have changed.
As much as the times have changed, the ad rules still impose serious restrictions on lawyer solicitation, even if the landscape now permits more direct and creative marketing to clients. Be careful out there.