Whom may an Alabama lawyer directly solicit in person or by telephone for legal business without violating the anti-solicitation rule?

Plain-English summary

The Disciplinary Commission addressed when a lawyer may conduct direct solicitation (in-person or telephone contact) for professional employment under Rule 7.3(a). The opinion concludes the rule expressly authorizes a lawyer to directly solicit any family member (related by blood or marriage) and any former or current client.

The opinion explains that Rule 7.3(a) continues the traditional prohibition on direct solicitation of legal employment from a prospective client with whom the lawyer has no familial or current or prior professional relationship, when a significant motive is the lawyer's pecuniary gain. Quoting the Comment to Rule 7.3, the opinion describes why direct solicitation is disfavored: it occurs in private, away from public scrutiny, and subjects a person who may already feel overwhelmed and have impaired judgment to the private importuning of a trained advocate, creating a risk of undue influence, intimidation, and overreaching, while Rule 7.2 advertising offers an alternative way to convey information.

The opinion then explains the exemptions. Family members are exempted because it is presumed less likely a lawyer would use abusive or misleading practices against a relative; the Commission reads "familial" strictly as a relationship by blood or marriage and declines to extend it to "close personal friends," which would be hard to define and enforce. Current and former clients are exempted because their prior or ongoing interaction with the lawyer gives them a sufficient basis to judge whether to continue or reactivate the relationship. The opinion also notes that, under In re Primus, 436 U.S. 412 (1978), solicitation by nonprofit organizations litigating as a form of political expression is First Amendment protected, and that the ban may not apply where the lawyer seeks and receives no financial benefit. The opinion withdraws RO-93-02 to the extent it conflicts.

In practice

The opinion holds that, under the Alabama rule as it stood at the time of the opinion, the dividing line is the relationship and motive: a lawyer may make direct in-person or telephone contact with relatives by blood or marriage and with current or former clients, but not with strangers known to need legal services where a significant motive is the lawyer's pecuniary gain. The opinion reads "familial" narrowly (no "close personal friends" exception) and notes the separate First Amendment treatment of non-pecuniary, political-expression solicitation under In re Primus.

Common questions

Q: Can I call a former client to offer to handle a new matter?

A: Yes. The opinion concludes Rule 7.3(a) expressly exempts current and former clients from the ban on direct solicitation, because their prior interaction with the lawyer gives them a basis to judge whether to continue the relationship.

Q: Can I directly solicit a family member?

A: Yes, if related by blood or marriage. The opinion reads "familial" strictly to mean a family relationship by blood or marriage, and declines to extend the exemption to close personal friends.

Q: Can I directly solicit a stranger I know needs a lawyer?

A: No, where a significant motive is your pecuniary gain. The opinion concludes Rule 7.3(a) continues to prohibit direct in-person or telephone solicitation of a prospective client with whom the lawyer has no familial or professional relationship in that situation.

Q: Does the ban ever not apply at all?

A: The opinion notes two situations: solicitation by nonprofits litigating as political expression is First Amendment protected under In re Primus, and the ban may not apply where the lawyer seeks and will receive no financial benefit from the representation.

Background and rules framework

The opinion interprets Rule 7.3 (direct contact with prospective clients, Model Rule 7.3), specifically subsection (a)'s prohibition on pecuniary-motivated direct solicitation of those with no familial or professional relationship to the lawyer, and contrasts it with Rule 7.2 (advertising, Model Rule 7.2) as the permitted alternative channel. The opinion draws on the Comment to Rule 7.3 and on In re Primus for the constitutional limit on regulating non-pecuniary, expressive solicitation.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.3 / Ala. R. Prof. C. 7.3(a) (direct contact with prospective clients)
• Model Rule 7.2 / Ala. R. Prof. C. 7.2 (advertising)

Cases:

• In re Primus, 436 U.S. 412 (1978), First Amendment protection for nonprofit, expressive solicitation

Other opinions cited:

• Alabama RO-93-02: withdrawn to the extent it conflicts with this opinion

See also

• ABA Ethics Op. 501: Solicitation of Clients
• ABA Ethics Op. 465: Deal-of-the-Day Marketing Programs
• ABA Ethics Op. 07-445: Contact With Putative Class Members

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/2006-01/
• Original PDF: https://www.alabar.org/assets/2019/11/2006-01.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS OPINION RO-2006-01

OFFICE OF GENERAL COUNSEL

Direct Solicitation of Former and Present Clients

QUESTION #1:

Under what circumstances may an attorney conduct direct solicitation, via in-person contact or by telephone, for professional employment under Rule 7.3(a), Alabama Rules of Professional Conduct?

ANSWER:

Rule 7.3(a), Ala. R. Prof. C., expressly authorizes an attorney to directly solicit any family member (related by blood or marriage), former client, or current client.

DISCUSSION:

Rule 7.3(a) continues the traditional prohibition against direct solicitation of legal employment. That Rule provides in pertinent part the following:

Rule 7.3. Direct Contact With Prospective Clients. (a) A lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no familial or current or prior professional relationship, in person or otherwise, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. A lawyer shall not permit employees or agents of the lawyer to solicit on the lawyer's behalf. A lawyer shall not enter into an agreement for or charge or collect a fee for professional employment obtained in violation of this rule. The term "solicit" includes contact in person, by telephone, telegraph, or facsimile transmission, or by other communication directed to a specific recipient and includes contact by any written form of communication directed to a specific recipient and not meeting the requirements of subdivision (b)(2) of this rule.

Direct solicitation is disfavored, in part, because the contact between attorney and prospective client is in private and therefore, not subject to public scrutiny. As such, the attorney can overreach and "can more readily mix misleading speech with factual statements." The reason for prohibiting direct solicitation is also discussed in the Comment to Rule 7.3:

There is a potential for abuse inherent in direct solicitation by a lawyer in person or by telephone, telegraph, or facsimile transmission of prospective clients known to need legal services. Direct solicitation subjects the non-lawyer to the private importuning of a trained advocate, in a direct interpersonal encounter. A prospective client often feels overwhelmed by the situation giving rise to the need for legal services and may have an impaired capacity for reason, judgment, and protective self-interest. Furthermore, the lawyer seeking to be retained is faced with a conflict stemming from the lawyer's own interest, which may color the advice and representation offered the vulnerable prospect.

The situation is therefore fraught with the possibility of undue influence, intimidation, and overreaching. This potential for abuse inherent in direct solicitation of prospective clients justifies some restrictions, particularly since the advertising permitted under Rule 7.2 offers an alternative means of communicating necessary information to those who may be in need of legal services.

Rule 7.3(a), Ala. R. Prof. C., however, expressly exempts from the ban against solicitation those persons with whom the attorney has a familial relationship and/or a current or prior professional relationship.

It is presumed less likely that an attorney would engage in abusive or misleading practices against a person with whom he enjoys a familial relationship. While there is a recent trend to also exclude close personal friends from the prohibition against direct solicitation, the Bar has yet to adopt such a provision. Rather, the term "familial" literally denotes a family relationship, by either blood or marriage. It would be exceedingly difficult to enforce a rule that allowed direct solicitation of "close, personal friends." What constitutes a "close, personal" relationship would be subject to debate and individual interpretation. As such, the Commission believes that a "familial" relationship refers strictly to a family member by blood or marriage.

Current and former clients are also excluded from the prohibition against direct solicitation. Due to their previous or ongoing interaction with the attorney, current or former clients will have a sufficient basis upon which to judge whether to continue or reactivate a professional relationship with a particular attorney.

It should also be noted that in In Re Primus, 436 U.S. 412 (1978), the United States Supreme Court held that the solicitation of prospective clients by nonprofit organizations that engage in litigation as a form of political expression are entitled to First Amendment protection and not subject to disciplinary action under the First Amendment for improper solicitation. In Primus, the prospective client was contacted after she had been sterilized as a condition to receiving Medicaid benefits. The attorney offered to represent her, free of charge, under the auspices of the American Civil Liberties Union. The ban against direct solicitation also may not apply when the attorney is not seeking and will not receive any type of financial benefit from the representation.

To the extent that RO-93-02 opined otherwise or conflicts with this opinion, it is hereby withdrawn.

JWM/s 6/21/06