chevron-down Created with Sketch Beta.
June 07, 2022 Articles

ABA Formal Opinion 501: What You (Purposefully) Don’t Know Can Be Held Against You

A poignant reminder that as attorneys we are responsible for training and supervising non-lawyers working on our behalf.

By Deborah Winokur

In mid-April 2022, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 501 clarifying how the non-solicitation rule operates when third parties solicit on a lawyer’s behalf.

Rule 7.3 governs in-person solicitation of new clients for a lawyer’s financial gain and prohibits person-to-person contact with a person who the lawyer knows or reasonably should know is in need of legal services unless the person is a lawyer, a lawyer’s personal contact, or a person who routinely uses the type of legal services the lawyer offers. Rule 7.3 was created to protect the public from overreaching, particularly in the aftermath of a crisis or traumatic event. Text messages, chat room messages, or other written communications are not considered person-to-person contact under Rule 7.3. Formal Opinion 501 explains the interplay between the non-solicitation rule and the rules relating to supervision of non-lawyers and misconduct for knowingly inducing others to act on a lawyer’s behalf.

While the opinion was not met with earth-shattering response from lawyers and bar associations, the guidance provides a poignant reminder that as attorneys we are responsible for training and supervising non-lawyers working on our behalf. In particular, the committee provided four hypotheticals that are instructive.

First Hypothetical: The Old-School Cold Call

In the first hypothetical, a lawyer obtains a list of people (all non-lawyers) who have recently been arrested and calls them by phone to offer legal services. The committee concluded that the conduct is a straightforward violation of Rule 7.3(b) as the lawyer initiated an in-person communication, the persons contacted were not personally known by the lawyer, and the communication was for the lawyer’s financial gain.

Second Hypothetical: Outsourced “Lurking”

In the second hypothetical, a lawyer’s marketing department, of which the lawyer has direct supervision, hires a lead-generator service. The service engages in a practice of “lurking” in chat rooms to identify victims or relatives of victims of major catastrophes. Next, the service researches these individuals and contacts them by phone to see if they are looking for a lawyer. The lawyer is not aware of these specific practices, but accepts the referrals. The committee determined that the lawyer violated Rule 7.3 because the communications were in-person contact made for the lawyer’s financial gain. The committee also pointed out that the lawyer violated the supervision rule by failing to properly train the lead generator.

Third Hypothetical: “Take My Boss’s Card”

The third hypothetical involves a paralegal who works at a law firm and also works part-time as a paramedic. The law firm supports the paralegal’s outside work because the firm believes that the work as a paramedic brings new business to the firm. The paralegal was promised a bonus for distributing the firm’s contact information to accident victims. The committee concluded that the in-person solicitation by the paralegal on the law firm’s behalf violates Rule 7.3 and also raises a potential violation of the supervision rule.

Fourth Hypothetical: “Please Pass Along My Number”

The final hypothetical posits a situation wherein a lawyer asks a friend who is a banker to provide the lawyer’s contact information to clients or employees of the bank who may be in need of the lawyer’s estate-planning services. In this case, the committee concluded that the conduct does not violate the solicitation rule because the lawyer did not target a specific person and the lawyer does not have authority over the banker, including whether the banker will share the contact information at all and what the banker communicates about the lawyer. The committee found this scenario to be similar to “word of mouth” referrals, which similarly do not violate the non-solicitation rule.

In light of the opinion, lawyers are advised to review the version of Rule 7.3 adopted in their home jurisdictions and take steps as necessary to train non-lawyers under their supervision regarding the parameters of the non-solicitation rule.

Deborah Winokur is an attorney at Cozen O’Connor in Philadelphia, Pennsylvania.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Copyright © 2022, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Litigation Section, this committee, or the employer(s) of the author(s).