Can a lawyer licensed only in another state mail solicitations to Illinois accident victims?

Plain-English summary

Lawyer A is licensed only in a state other than Illinois and claims extensive mass-disaster tort experience. From his out-of-state office, he mails advertising packets and solicitation letters to people injured in major disasters in Illinois and other states, retaining local counsel when representing claimants outside his state of licensure. No Illinois resident has responded. The committee was asked whether the solicitation is the unauthorized practice of law in Illinois and whether it violates the Illinois Rules of Professional Conduct.

On unauthorized practice, the opinion explains that the 2010 adoption of Rule 5.5 greatly broadened temporary practice by out-of-state lawyers, so the solicitation itself likely would not constitute unauthorized practice. The committee walks through Rule 5.5(c)'s temporary-practice categories and Comment 14's guidance on when a matter "arises out of or is reasonably related to" the lawyer's home-state practice. It notes that whether advertising in Illinois creates a "continuous and systematic presence" that takes the practice out of "temporary" is an open question it does not resolve, and that, not having seen the actual solicitation, it cannot opine on whether this specific mailing would be unauthorized practice.

On the advertising rules, the opinion holds the solicitation must meet Rules 7.1 through 7.5 even if it is not the practice of law. Under Rule 7.1, by sending the letter A implies he is eligible to undertake the representation; to avoid being materially misleading, the letter must disclose the jurisdiction(s) where A is licensed and, by implication, that he is not licensed in Illinois, because his ability to represent Illinois residents depends on the specific facts. Rule 7.3(c) requires the words "Advertising Material" on the envelope and at the start and end of any recorded or electronic communication, unless the recipient is a lawyer or has a family, close personal, or prior professional relationship with A.

The committee adds that offering to provide legal services in Illinois subjects A to Illinois disciplinary authority under Rule 8.5(a), that retaining local counsel does not cure a misleading or materially incomplete solicitation, and that no one having responded is irrelevant to whether the advertisement complies with the rules.

In practice

Under this opinion, an out-of-state lawyer may solicit Illinois personal injury clients without the solicitation itself being unauthorized practice after the 2010 Rule 5.5 amendments, but the opinion holds the mailing must comply with the Illinois advertising rules. It must disclose the lawyer's state(s) of licensure (and thus that the lawyer is not licensed in Illinois) to avoid being materially misleading under Rule 7.1, and must carry the "Advertising Material" label required by Rule 7.3(c). The opinion notes that offering services in Illinois subjects the lawyer to Illinois disciplinary jurisdiction under Rule 8.5(a), and that retaining local counsel does not fix an otherwise-misleading solicitation.

Common questions

Q: Is it unauthorized practice for an out-of-state lawyer to mail solicitations to Illinois clients?

A: Not by itself. The opinion concludes that after the 2010 Rule 5.5 changes the solicitation alone likely is not unauthorized practice, though the committee declines to decide whether advertising could create a "continuous and systematic presence" that crosses the line.

Q: What must an out-of-state lawyer's solicitation letter to Illinois recipients disclose?

A: Per the opinion, to avoid being materially misleading under Rule 7.1 the letter must disclose the jurisdiction(s) where the lawyer is licensed and, by implication, that the lawyer is not licensed in Illinois.

Q: Does the letter need an "Advertising Material" label?

A: Yes. The opinion applies Rule 7.3(c), which requires "Advertising Material" on the outside envelope and at the beginning and end of any recorded or electronic communication, unless the recipient is a lawyer or has a family, close personal, or prior professional relationship with the lawyer.

Q: Does retaining Illinois local counsel cure any problems with the solicitation?

A: No. The opinion states that hiring local counsel is not enough to satisfy the requirement that the solicitation not be misleading or omit a material fact.

Background and rules framework

The opinion interprets Illinois Rule of Professional Conduct 5.5 (multijurisdictional and unauthorized practice; Model Rule 5.5), Rules 7.1 through 7.5 (lawyer advertising and solicitation; Model Rules 7.1-7.3), and Rule 8.5 (disciplinary authority; Model Rule 8.5). The 2010 Illinois adoption of Rule 5.5(c) and its comments are central to the unauthorized-practice analysis.

Citations and references

Rules of Professional Conduct:

• Illinois RPC 5.5 (Model Rule 5.5): multijurisdictional and unauthorized practice
• Illinois RPC 7.1 (Model Rule 7.1): false or misleading communications
• Illinois RPC 7.3(c) (Model Rule 7.3): "Advertising Material" labeling for solicitations
• Illinois RPC 8.5(a) (Model Rule 8.5): disciplinary authority over lawyers offering services in Illinois

See also

• ISBA Ethics Op. 12-17: Non-Illinois Licensed Lawyer Representing a Party in Illinois
• ISBA Ethics Op. 12-04: Labeling Direct Solicitations as Advertising Material
• ISBA Ethics Op. 13-08: Practicing Immigration Law in Illinois by a Non-Illinois Lawyer
• NY State Bar Op. 1091: Reporting an Out-of-State Lawyer's Unauthorized Practice

Source

• Landing page: https://www.isba.org/ethics/opinions/1404