Solicitation of Potential Clients by a Law Firm’s Employees or Agents

Are there limits on employees or agents of a law firm soliciting work for the firm from individuals known or reasonably believed to be in need of legal services for a particular matter?  In a recently issued opinion, the ABA’s ethics committee has attempted to answer that question.

On April 13, 2022, the ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 501, titled simply “Solicitation.”  In addressing the scope of Rule 7.3’s prohibition on live, real time communications directed at prospective clients, the Opinion also provides a useful reminder of the responsibilities imposed on supervising attorneys to ensure that anyone the lawyer employs, retains, or associates with – from either inside or outside the firm – understands, and acts in accordance with, the Rules of Professional Conduct.  

The Solicitation Rules

In both ABA Model Rule 7.3(a) and Connecticut Rule 7.3(a) the terms “solicit” and “solicitation” refer to:

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.

And, with certain exceptions, Rule 7.3(b) prohibits solicitation via “live person-to-person contact” where the “motive” of the solicitation is the lawyer’s “pecuniary gain.”  The amendments of the advertising rules (effective in Connecticut as of January 1, 2020) expanded the scope of the exceptions to the prohibition on live contact with prospective clients.  Such contact is permissible, for example, where the contact is with:

• another lawyer (Rule 7.3(b)(1));
• someone with whom the lawyer has a family relationship, close personal relationship, or a prior business or professional relationship (Rule 7.3(b)(1));
• a business organization or a “person who routinely uses for business purposes the type of legal services” the lawyer offers to provide (Rule 7.3(b)(4)); or
• “a not-for-profit organization or governmental body” (Rule 7.3(b)(4)).

But under Connecticut’s version of Rule 7.3(c), even if otherwise permissible under the Rule, solicitation is prohibited if:

• the “physical, emotional or mental state of the person makes it unlikely that the person would exercise reasonable judgment in employing a lawyer”;
• the target of the communication has expressed “a desire not to be solicited”; or
• the “solicitation involves coercion, duress, fraud, over-reaching, harassment, intimidation or undue influence.”

Connecticut adopted nearly all of the ABA’s 2018 amendments simplifying the advertising rules, but it retained the long standing prohibition on solicitation in connection with personal injury, wrongful death, or other accident or disaster matters until forty days after the accident or disaster, unless the target of the solicitation is any person or entity within the scope of the exceptions of Rule 7.3(b). 

Lawyer Responsibility for the Conduct of Others “Soliciting” on the Lawyer’s Behalf

The focus of Formal Opinion 501 is, however, not so much on what a lawyer may or may not do with respect to solicitation.  Instead, the authors discuss the extent to which the rule reaches the conduct of “‘others’ who might solicit on behalf of a lawyer [such as] 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.”

With respect to such “others,” a lawyer must look to Rule 5.3 – which requires that lawyers take reasonable steps to ensure that nonlawyers under their supervision act in accordance with the Rules of Professional Conduct – and Rule 8.4(a) – which holds lawyers accountable for the conduct of others that the lawyer “knows of . . . and in some ways requests or authorizes.” 

Lessons from the ABA Solicitation Hypotheticals

After discussion of the applicable rules, the opinion provides guidance to lawyers about solicitation issues through a series of hypotheticals that illustrate the following:

• A lawyer who calls individuals on a sheriff’s list of recent arrestees and offers to provide general legal services violates the rule prohibiting solicitation.
• A lawyer who pays a marketing firm a monthly fee to generate leads for mass tort cases violates the rule where the marketing firm obtains the leads by lurking in “online chat rooms set up for family members and survivors of . . . possible mass torts,” undertaking research about chat room participants, and then calling them to let them know about the lawyer and his experience in mass tort cases. Such contacts violate the rule because they were live contacts made on behalf of the lawyer, were directed to specific persons known to be in need of legal services in a particular matter, and were made for the lawyer’s pecuniary gain.  Pursuant to Rule 5.3 and 8.4(a), the lawyer could be deemed responsible for the marketing firm’s conduct because he made no effort to ensure that the lead generation activities would be in conformance with Rule 7.3, and then ratified the conduct by accepting the leads even though he knew they had been obtained by contacts that violated the rules.
• A lawyer would violate Rules 7.3, 5.3 and 8.4(a) if he knew that a firm paralegal handed out the firm’s card to injured people in ambulances where she was working a second job as a paramedic. Not only did the firm fail to properly train the paralegal on the niceties of solicitation, but her supervisory lawyer also ratified the conduct by congratulating her and suggesting she deserved a bonus for bringing in new business. 
• There is no violation of Rule 7.3 where a lawyer “asks a personal friend or colleague who is a banker to provide the lawyer’s name and contact information to any customer or employee that the banker thinks might need an estate plan.” Such a request does not implicate the anti-solicitation provisions because the lawyer did not target or direct communications to a specific individual known to be in need of legal services; the lawyer had no authority over the banker’s conduct or communications; the banker’s communications were not an offer to provide legal service; and such communications do not implicate the risk of a prospective client feeling pressured by a lawyer’s live, person-to-person contact.  

The analysis in the last hypothetical should allay concerns that word-of-mouth referrals from friends, family, business connections, or satisfied current or former clients are somehow impermissible.  As ethics experts often note, the Rules of Professional Conduct are rules of reason, and “[t]o suggest that Rule 7.3 prohibits a lawyer’s colleagues in other professions or satisfied clients from providing information about a lawyer’s services to other people is not realistic or consistent with the purpose of the Rule.”

Conclusion

Lawyers must keep in mind that they can run afoul of the prohibitions of Rule 7.3 not only through their own conduct, but through the conduct of employees or others under their supervision who are acting on behalf of a lawyer or law firm.  But  clients or other individual not under the authority or control of a lawyer may, however, “share with others their opinions and recommendations about the lawyer. The lawyer may even request such appropriate communications by clients and others.”