Can a lawyer pitch a county board in person to abolish the public defender and hire the lawyer's firm instead?

Plain-English summary

A lawyer approached a local county board member in person, suggesting the board abolish the public defender's office and instead hire the lawyer's firm to do that work on a contract basis at a rate that would save the county money. The question was whether the contact was improper solicitation under Rule 7.3.

The opinion concluded that, read as an in-person contact, the lawyer's solicitation violated Rule 7.3, which provides that a lawyer shall not, directly or through a representative, solicit professional employment when a significant motive is the lawyer's pecuniary gain, with "solicit" defined to include in-person contact. It concluded that while some forms of contact once treated as improper solicitation have come to be recognized as constitutionally protected, in-person solicitation has not, and is subject to a categorical ban because of its inherent dangers, citing Ohralik v. Ohio State Bar Association and Shapero v. Kentucky State Bar Association.

The opinion concluded that the right-to-petition concerns present in Opinion No. 92-3 did not apply here, because the communication related solely to soliciting employment, and that the recipient being a governmental representative was irrelevant to the analysis.

Currency note

This opinion was issued in 1994, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (referring to Rule 7.3), while noting the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Is an in-person pitch for legal work improper solicitation?

A: The opinion concluded yes, where a significant motive is the lawyer's pecuniary gain. In-person solicitation is categorically barred under Rule 7.3 because of its inherent dangers.

Q: Does it matter that the pitch was to a government official rather than an individual?

A: The opinion concluded no. It found the recipient being a governmental representative irrelevant, because the communication related solely to soliciting employment.

Q: Are all forms of lawyer outreach barred?

A: No. The opinion noted that some forms of contact once viewed as improper solicitation are now recognized as constitutionally protected; the categorical ban it applied was specific to in-person solicitation.

Background and rules framework

The opinion interpreted Rule 7.3 (solicitation of professional employment, directly or through a representative, when a significant motive is pecuniary gain; Model Rule 7.3). It relied on Ohralik v. Ohio State Bar Association and Shapero v. Kentucky State Bar Association on the constitutional treatment of in-person solicitation.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.3 (solicitation of clients) / Illinois Rule 7.3

Cases:

• Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978), categorical ban on in-person solicitation
• Shapero v. Kentucky State Bar Association, 486 U.S. 466 (1988), targeted direct mail

Other opinions cited:

• ISBA Advisory Opinion No. 92-03

See also

• ISBA Ethics Op. 97-02: In-Person Solicitation by a Lawyer's Employee
• ISBA Ethics Op. 96-02: Third-Party Solicitation on Behalf of a Lawyer
• CA COPRAC Op. 1983-075: Mass-Distribution Solicitation Letters

Source

• Landing page: https://www.isba.org/ethics/opinions/9310