Solicitation of potential clients by employees or agents of a law firm | Pullman & Comley, LLC
Are there any limitations on employees or agents of a law firm who solicit work for the firm from persons known or reasonably suspected of needing legal services for a particular matter? In a recent opinion, the ABA Ethics Committee attempted to answer this question.
On April 13, 2022, the ABA’s Standing Committee on Ethics and Professional Responsibility issued formal notice 501, simply titled “Solicitation.” By addressing the scope of Rule 7.3’s prohibition on live, real-time communications to potential clients, the notice also provides a useful reminder of the responsibilities imposed on supervising attorneys to ensure that anyone the lawyer employs, retains or associates with – inside or outside the firm – understands and acts in accordance with ethical rules.
In ABA Model Rule 7.3(a) and Connecticut Rule 7.3(a), the terms “solicit” and “solicitation” mean:
a communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person whom the lawyer knows or reasonably should know is in need of legal services in a particular matter and who offers to provide, or can reasonably be understood to offer to provide, legal services elsewhere.
And, with some exceptions, Rule 7.3(b) prohibits solicitation by “direct person-to-person contact” where the “motive” for the solicitation is the lawyer’s “pecuniary gain”. Advertising rule changes (effective in Connecticut as of January 1, 2020) have expanded the scope of exceptions to the ban on direct contact with potential customers. Such contact is authorized, for example, when the contact is with:
- another lawyer (rule 7.3(b)(1));
- a person with whom the lawyer has a family relationship, a close personal relationship or a prior business or professional relationship (Rule 7.3(b)(1));
- a commercial organization or a “person who regularly uses for commercial purposes the type of legal services” that the lawyer proposes to provide (Rule 7.3(b)(4)); or
- “a not-for-profit organization or government agency” (Rule 7.3(b)(4)).
But under the Connecticut version of Rule 7.3(c), even if otherwise permitted by the Rule, solicitation is prohibited if:
- “the person’s physical, emotional or mental condition makes it unlikely that he or she will exercise reasonable judgment in engaging counsel”;
- the target of the communication has expressed “a desire not to be solicited”; or
- “solicitation involves coercion, duress, fraud, overreach, harassment, intimidation or undue influence”.
Connecticut passed nearly all of the 2018 ABA amendments simplifying advertising rules, but retained the longstanding ban on solicitation in connection with personal injury, wrongful death, or other accident or disaster 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 in Rule 7.3(b).
Lawyer’s Liability for Conduct of Others “Soliciting” on Lawyer’s Behalf
The formal 501 notice, however, is not so focused on what an attorney can or cannot do in solicitation. Instead, the authors discuss the extent to which the rule affects the conduct of “other persons” who might solicit on behalf of an attorney. [such as] current employees of the lawyer, marketing companies engaged 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 should refer to Rule 5.3 – which requires lawyers to take reasonable steps to ensure that non-lawyers under their supervision act in accordance with the Rules of Professional Conduct – and Rule 8.4(a) – which requires lawyers to be liable for the conduct of others of which the lawyer “knows . . . and in a way asks or authorizes.
Lessons learned from the ABA solicitation assumptions
After discussing the applicable rules, the notice guides attorneys on solicitation issues through a series of assumptions that illustrate the following:
- A lawyer who calls people on the sheriff’s list of recently arrested persons and offers to provide general legal services violates the rule against soliciting.
- A lawyer who pays a marketing company a monthly fee to generate leads for mass liability cases is breaking the rule that the marketing company gets the leads by hiding in “online chat rooms set up room for family members and survivors of . . . possible mass crimes,” undertaking research on chat room participants and then calling them to tell them about the attorney and his background in the cases such contacts violate the rule because they were live contacts made on behalf of the lawyer, directed to specific individuals known to need legal services in a particular matter, and were been established for the pecuniary gain of the lawyer. Pursuant to Rules 5.3 and 8.4(a), the lawyer could be held liable for the conduct of the marketing business. ion because he made no effort to ensure that lead generation activities would comply with rule 7.3, 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 gave the firm’s card to injured persons in ambulances where she held a second job as a paramedic. Not only did the firm fail to properly train the paralegal on the intricacies of solicitation, but her supervising attorney also endorsed the conduct by praising her and suggesting she deserved a bounty for bringing in new business.
- There is no breach of Rule 7.3 where a lawyer “asks a personal friend or fellow banker to provide the lawyer’s name and contact details to any client or employee whom the banker believes may have need an estate plan. Such a request does not engage the anti-solicitation provisions because the attorney did not target or direct the communications to a specific person known to be in need of legal services; the lawyer had no authority over the banker’s conduct or communications; the banker’s communications did not constitute an offer to provide legal services; and such communications do not involve the risk that a potential client will feel pressured by the direct and direct contact of an attorney.
Analysis of the latter assumption should dispel concerns that word of mouth referrals from friends, family members, business connections, or satisfied current or former customers are somehow inadmissible. As ethics experts often note, Rules of Ethics are rules of reason, and “[t]o to 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 others is unrealistic or in-purpose of the rule.
Lawyers should bear in mind that they may breach the prohibitions in Rule 7.3 not only by their own conduct, but also by the conduct of employees or other persons under their supervision who act on On behalf of a lawyer or a law firm. But clients or others who are not under the authority or control of an attorney may still “share their opinions and recommendations about the attorney with others. The lawyer may even require such appropriate communications from clients and others. »