After a mass disaster, can a lawyer contact victims to offer representation, and what kinds of advertising or mailings are allowed?

Plain-English summary

Prompted by the Board of Governors' question about the Bar's duty following mass disasters, the Committee set out the ethical limits on soliciting clients, noting the rules apply to any lawyer soliciting any client for pecuniary gain, not only to disaster situations. Because Alaska had not yet adopted the Model Rules, the opinion measured the existing Code provisions (DR 2-101, 2-103, 2-104) against the controlling First Amendment case law.

The opinion summarized four conclusions. A lawyer may not, personally or through others, engage in in-person or telephonic solicitation of persons (or their family members) involved in a mass disaster. A lawyer may advertise in the press or electronic media, provided the advertisement does not mislead and states at its beginning and end that it is an advertisement. A lawyer may send direct mail to the general public or to individuals known to need legal services, subject to the same bar on misrepresentation, with "Advertising Material" on the outer envelope. And a lawyer may not continue to solicit a prospective client after the client makes known a desire not to be contacted, and may not use coercion, duress, or harassment.

The opinion grounded the in-person and telephone ban in Ohralik v. Ohio State Bar Ass'n, which upheld a prophylactic ban on in-person solicitation for pecuniary gain, while noting under In re Primus that solicitation not motivated by pecuniary gain (public-interest litigation) may not be barred. It relied on Zauderer v. Office of Disciplinary Counsel for the principle that print advertising may be restricted only to serve a substantial governmental interest (and that the State may always reach false or misleading content), and on Shapiro v. Kentucky Bar Ass'n for the rule that a bar may not forbid targeted direct-mail advertising to people known to need particular legal services. The opinion treated proposed Model Rule 7.3 as correctly stating these constitutional limits.

Currency note

This opinion was issued in 1992, before Alaska's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct (and before Alaska adopted the Rules of Professional Conduct at all; it applies the former Code of Professional Responsibility while anticipating Model Rule 7.3). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer call or visit disaster victims to offer to represent them?

A: No. The opinion concluded a lawyer may not, personally or through others, engage in in-person or telephonic solicitation of disaster victims or their family members for pecuniary gain.

Q: Could a lawyer send a letter to people known to need legal services?

A: Yes. The opinion concluded targeted direct mail is permitted, relying on Shapiro, so long as it is not misleading and the envelope is marked "Advertising Material."

Q: Did the rules apply only to mass disasters?

A: No. The opinion stated the rules apply to any lawyer soliciting any client for pecuniary gain, not only in mass-disaster situations.

Q: What about solicitation that is not for money, like public-interest litigation?

A: The opinion noted, under In re Primus, that the bar may not regulate solicitation of prospective clients where the lawyer is not motivated by pecuniary gain, because of the right to free association.

Background and rules framework

The opinion applied the former Alaska Code of Professional Responsibility (DR 2-101 on advertising, DR 2-103 and DR 2-104 on solicitation), the analog to today's Model Rules 7.1 (false or misleading communications), 7.2 (advertising), and 7.3 (solicitation). Because the Code predated the controlling solicitation cases, the opinion determined the ethical limits by reference to the canons together with the First Amendment decisions.

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 2-101 (advertising) (cf. Model Rules 7.1, 7.2)
• DR 2-103, DR 2-104 (solicitation) (cf. Model Rule 7.3)

Cases:

• Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978)
• In re Primus, 436 U.S. 412 (1978)
• Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985)
• Shapiro v. Kentucky Bar Ass'n, 486 U.S. 466 (1988)

See also

• Alaska Ethics Op. 2009-2: Advertising Lawyer Ranking Systems
• Alaska Ethics Op. 2020-2: Publicizing Client Recoveries
• Alaska Ethics Op. 2010-1: Out-of-State Lawyer's Immigration Office

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/92-5.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION NO. 92-5
Solicitation of Clients
The Board of Governors has requested the committee's guidance
regarding the Bar's duty to the public following mass disasters. This opinion
will set forth ethical considerations involved in the solicitation of clients. These
ethical rules are binding upon lawyers in Alaska. The ethical rules apply to any
lawyer soliciting any client for pecuniary gain and are not limited to mass
disaster situations.1
DR 2-103 and DR 2-104 of the Code of Professional Responsibility
deal with solicitation of clients. DR 2-101 deals with media advertisement. The
Model Code predates recent United States Supreme Court decisions involving
legal solicitation.2 The American Bar Association Model Rules of Professional
Conduct recognize the evolution of the law of lawyer advertisement. Model Rule
7.3(a) correctly states the constitutional limitations on solicitation of clients.
The

1
The committee recognizes the work of Bruce B. Weyhrauch, Esq. and the bench and bar of Juneau who have
studied and prepared a mass disaster plan for the First Judicial District.
2
The Bar Association has proposed the adoption of the Model Rules of Professional Conduct but the Alaska
Supreme Court has yet to act upon that recommendation. More than two-thirds of the States have adopted the Model
Rules. Given the evolution of the law of Lawyer advertising in the United States Supreme Court, the existing canons are
both incomplete and confusing.
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ethical limits on solicitation must be determined by reference to the present
canons together with applicable case law.
Summary of the Opinion
1.

A lawyer may not, either personally or through third persons,

engage in person tot person or telephonic solicitation of persons who have been
involved or who have had family members involved in mass disaster.
2.

A lawyer may advertise in the public press or through the

electronic media. The advertisement may not misrepresent or mislead the
public. It must state at the beginning and end of the message that it is an
advertisement.
3.

A lawyer may make direct mailings either to the general public

or to individuals known to be in need of legal services subject to the same rules
on misrepresentation. The ma9ling must contain the words "Advertising
material" on the outer envelope.
4.

A lawyer may not continue to directly solicit business after the

prospective client makes known a desire not to receive such solicitation. The
solicitation may not involve coercion, duress or harassment.
Discussion
DR 2-103(A) provides "A Lawyer shall not, except as authorized in DR
2-101(B), recommend employment as a private practitioner, or himself, his
partner, or associate to a layperson who has not sought his advice regarding
employment of a lawyer." DR 2-103 (B) prohibits the payment of compensation
to individuals or organizations not listed within DR 2-103(D) for referral of work
or recommendation resulting in employment. If a lawyer gives unsolicited advice
to a layperson recommending that the layperson obtain counsel, that lawyer
may not thereafter accept employment from that person except in the limited
circumstances set out in the rule. Thus, the present canons prohibit a lawyer
from recommending herself or her law firm to an unrepresented layperson who
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has not sought such advice. The rules would allow the lawyer to advise the
individual that he needs to seek counsel. When such unsolicited advice is given,
the lawyer cannot thereafter accept employment.
Present DR 2-101 prohibits "public communications" containing
false, fraudulent, misleading, deceptive, self-laudatory or unfair statements or
claims. DR 2-101(B) limits or purports to limit the information which may be
disseminated. DR 2-101(B) also requires advertisement to be made in a
"dignified manner."
The disciplinary rules are amplified by decisions of the United States
Supreme Court. There are three cases which are germane to the situation
before the committee. In Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 454
(1978), the Court upheld a blanket prohibition against any form of in-person
solicitation of legal business for pecuniary gain. The State's interest in
preventing "those aspects of solicitation that induce fraud, undue influence,
intimidation, overreaching and other forms of vexatious conduct" overrides the
lawyer's interest in communication. See Annotated Model Rules of Professional
Conduct, American Bar Association (Second Edition) 1992, p. 522. The
Supreme Court noted that since in-person solicitation for pecuniary gain is
basically impossible to regulate, a prophylactic ban is constitutional.3 Thus,
the committee believes that the ban on in-person solicitation arising out of DR
2-103 and DR 2-104 is proper and may be enforced. The considerations which
influenced the Court in Ohralik are no less important in Alaska. "Unlike a
public advertisement, which simply provides information and leaves the
recipient free to act upon it or not, in-person solicitation may exert pressure and
often demands an immediate response, without providing an opportunity for
comparison or reflection. The aim and effect of in-person solicitation may be to
3
The Constitutional ability to ban solicitation is limited to situations where the lawyer is motivated by
pecuniary gain. The Supreme Court has specifically ruled that in cases where there is no motivation for pecuniary
gain (public interest litigation), the Bar may not regulate solicitation of prospective clients because of the lawyers right
to free association. In re Primus, 436 U.S. 423 (1978).
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provide a one-sided presentation and to encourage speedy and perhaps
uninformed decision making..." 436 US at 457.
This prophylactic ban is limited to in person and telephonic
solicitations. It does not apply to printed advertisements.
Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985). There, the
Supreme Court also evaluated constitutional limitations on the content of
printed solicitations. The State may always regulate false or misleading
statements. Other restrictions may be made only "in the service of a substantial
governmental interest and only through means that directly advance that
interest." Id. For instance, the State's desire that attorneys maintain their
dignity in communications with the public is not an interest substantial enough
to justify abridgement of the First Amendment right. Id.
The Supreme Court upheld the state finding of misleading solicitation
in one important instance. Zauderer had advertised the availability of a
contingent fee arrangement, without informing the public that an unsuccessful
litigant would be liable for costs and fees. The Court noted that the
advertisement informed the public, "if there is no recovery, no legal fees are
owed by our clients." Id. The Court upheld the state's discipline because the
reasonable implication made by unsophisticated laypersons would be that if the
cause was unsuccessful, they would owe nothing. Id.
Shapiro v. Kentucky Bar Ass'n, 486 US 466 (1988) held that a State
Bar Association may not preclude a lawyer from sending mail advertisements to
individuals who are known to require specific legal services. The Court rejected
the claim that Shapiro was Ohralik "in writing." "In assessing the potential for
overreaching and undue influence, the mode of communication makes all the
difference." 486 US at 475. The letter sent by Shapiro posed much less risk of
overreaching or undue influence than in-person solicitation because of the
absence of "the coercive force of the personal presence of a trained advocate" or
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the "pressure on the potential client for an immediate yes-or-no answer." Id.
The recipient of a letter is free to ignore the mailing, discard the mailing or if he
chooses read it. The personalized mailing is, of course, subject to the same
limitation on misrepresentation as any other public communication.
Proposed Model Rule of Professional Conduct 7.3(a) correctly limits a
lawyer from in-person and telephone solicitation for pecuniary gain.
The United States Supreme Court Cases do not regulate the extent to
which a lawyer may continue to solicit clients after being informed that the
client does not wish to be the recipient of further solicitation or the solicitation
involves coercion, duress or harassment. Model Rule 7.3(b) would prohibit
those practices. The committee believes that such limitations would be implicit
under the current canons as applied by the United States Supreme Court
because an attorney's First Amendment right to free speech does not include a
right of coercion, duress or harassment.
Model Rule 7.3(c) requires that "Every written or recorded
communication from a lawyer soliciting professional employment from a
prospective client known to be in need of legal services in a particular matter
and with whom the lawyer has no family or prior professional relationship, shall
include the words "Advertising Material" on the outside envelope and at the
beginning and ending of any recorded communication." Shapiro neither
condemns nor condones this limitation. In the view of the committee, there is
much less opportunity for misrepresentation or misleading solicitations if such
communications are clearly labeled as advertisement. Therefore, in the view of
the committee, this restriction is reasonably related to the express goal of
preventing misleading solicitation.
Approved by the Alaska Bar Association Ethics Committee on April 2, 1992.
Adopted by the Board of Governors on June 1, 1992.
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