When is a lawyer responsible under the solicitation rule for live contact made by the lawyer or by employees, lead generators, or others acting for the lawyer?

Plain-English summary

The opinion addresses the scope of a lawyer's responsibility under the 2018-amended Rule 7.3 for live, person-to-person solicitation, both the lawyer's own conduct and conduct by others acting on the lawyer's behalf. It works through four hypotheticals: telephoning people on a sheriff's arrestee list; hiring a lead generator whose employees lurk in online chat rooms and call mass-tort victims; a paralegal who moonlights as a paramedic handing out firm business cards to accident victims; and asking a banker friend to pass the lawyer's contact information to customers who might need an estate plan.

The opinion explains that the 2018 amendments wrote a narrow definition of "solicitation" into Rule 7.3(a), limited to a communication directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter that offers to provide legal services for that matter, and that Rule 7.3(b) prohibits such solicitation by live person-to-person contact where a significant motive is pecuniary gain, subject to exceptions for other lawyers, persons with a family or close personal or prior professional relationship, and persons who routinely use such services.

On responsibility for others, the opinion applies Rule 8.4(a) and Rule 5.3. Per the opinion, "a lawyer cannot do through another person that which the lawyer could not do directly," but "it would be manifestly unfair and illogical to hold a lawyer responsible for another's actions that the lawyer does not even know about." Supervisory and managerial lawyers must make reasonable efforts to ensure nonlawyer agents act compatibly with the lawyer's obligations, and the opinion stresses that "just as a supervisory lawyer must explain the ethical duty of confidentiality to employees, the supervisory lawyer must likewise explain the requirements of Rule 7.3 to refrain from improper solicitation on behalf of the lawyer."

Applying this, the opinion finds the arrestee calls, the ratified lead-generator arrangement, and the ratified paralegal card-handout all prohibited. But it concludes the banker referral is permissible and not solicitation, reasoning that the Rules are "rules of reason" and that "such satisfied client recommendations to the public or directly to the client's friends and family are permissible."

In practice

Under this opinion, a lawyer may not solicit clients through live person-to-person contact for pecuniary gain unless a Rule 7.3(b) exception applies, and the prohibition reaches solicitation the lawyer directs, ratifies, or knowingly tolerates from employees, retained lead generators, or other agents. The opinion holds that a lawyer who hires people to solicit, or who accepts leads while consciously avoiding knowledge of how they are generated, can be responsible under Rules 7.3(b), 8.4(a), and 5.3(b) and (c), and that failing to train staff about Rule 7.3 can itself violate Rules 5.3 and 8.4(a). The opinion treats unprompted word-of-mouth referrals from friends, other professionals, or satisfied clients, where the lawyer does not direct the content or target a specific known person, as permissible and outside the definition of solicitation.

Common questions

Q: Can a lawyer call people who were just arrested to offer representation?

A: Per the opinion, no. Telephoning people the lawyer knows need legal services in a particular matter to offer those services is live person-to-person solicitation barred by Rule 7.3(b), and the arrestee scenario fits no exception.

Q: Is a lawyer responsible for what a hired lead generator's employees do?

A: The opinion says yes where the lawyer ordered or ratified the conduct or failed to train and supervise. Accepting leads while consciously ignoring how they are generated can establish the knowledge needed for responsibility under Rules 8.4(a) and 5.3.

Q: Can a satisfied client or a friend in another profession refer people to the lawyer?

A: Per the opinion, yes. Unprompted word-of-mouth recommendations, where the lawyer does not direct specific statements to particular potential clients, are permissible and are not solicitation.

Q: What must a supervising lawyer do about staff solicitation?

A: The opinion requires the lawyer to explain Rule 7.3 to employees and agents and to supervise them, just as the lawyer must explain confidentiality, so that they refrain from improper solicitation on the lawyer's behalf.

Background and rules framework

The opinion interprets Model Rule 7.3 (solicitation of clients) as amended in 2018, including the 7.3(a) definition, the 7.3(b) prohibition and exceptions, and 7.3(c) through (e). It applies Rule 8.4(a) (violating the rules through the acts of another) and Rule 5.3 (responsibilities regarding nonlawyer assistance), and uses the Rule 1.0 definitions of "knows" and "reasonably should know." It relies on Formal Opinion 467 (2014) for the Rule 5.3 analysis and Formal Opinion 491 on conscious avoidance of knowledge.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 7.3 (solicitation), including 7.3(a), (b), (c), (d), (e)
• ABA Model Rule 8.4(a) (acting through another), 5.3 (nonlawyer assistance)
• ABA Model Rule 1.0 (defined terms "knows" and "reasonably should know")

Statutes:

• 49 U.S.C. § 1136(g)(2) (45-day bar on soliciting air-crash victims and families)

Other opinions cited:

• ABA Formal Op. 467 (2014): supervisory duties under Rule 5.3
• ABA Formal Op. 491 (2020): knowledge from conscious, deliberate failure to inquire

See also

• ABA Formal Op. 506: Nonlawyer Assistants & Intake
• ABA Formal Op. 502: Pro Se Lawyer and Rule 4.2
• ABA Formal Op. 507: Office Sharing Arrangements
• RI EAP Op. 2013-02: A Fact-Finding Letter to Other Club Members Does Not Trigger Rule 7.3, but This Draft Crossed Into Solicitation

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: aba-formal-opinion-501.pdf