The ABA Standing Committee on Ethics and Professional Responsibility has released a formal opinion addressing live, in-person lawyer solicitation. In Formal Opinion 501 (Apr. 13, 2022), the committee seeks to clarify ambiguities in the Model Rules of Professional Conduct regarding the types of solicitation expressly prohibited by the Model Rules and a lawyer’s responsibility for solicitation efforts of persons employed by, retained by, or associated with the lawyer.
Here are the main take-aways:
- The Model Rules of Professional Conduct define solicitation 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.” See Model Rules of Prof’l Conduct, r. 7.3(a). The Model Rule’s prohibition of solicitation applies only to “live person-to-person contact.” See Model Rules of Prof’l Conduct, r. 7.3(b).
- The Model Rules contain several exceptions to prohibited solicitation such as when the person contacted is a (1) lawyer; (2) person who has a family, close personal, or prior business or professional relationship with the lawyer or law firm; or (3) person who routinely uses for business purposes the type of legal services offered by the lawyer. See Model Rules of Prof’l Conduct, r. 7.3(b).
- As to a lawyer’s responsibility for solicitation efforts of another, the Committee opines that “Rule 8.4(a) [subjects] a lawyer to discipline for the conduct of another only if the lawyer knows of the other person’s conduct and in some way requests or authorizes the conduct.” See Formal Opinion 501 at 3. Moreover, “if a lawyer knows of specific unethical conduct by an employee and either directed that conduct, ratifies the conduct after the fact, or fails to take reasonable remedial measures after the fact, the lawyer violates Rule 5.3(c), among other rules.” Id. at 4. For these reasons, a supervising lawyer must explain the Model Rule’s prohibition on solicitation to employees and instruct employees to refrain from improper solicitation on behalf of the lawyer.
- Happy clients, third parties, and friends not employed by the lawyer may tell others about their opinions of the lawyer and recommend the lawyer. These communications are not prohibited solicitation. A lawyer may even request that clients or friends share such communications with other. These communications are not prohibited solicitations because “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.” Id. at 7.