Can a lawyer give a client's name to a bank as a sales lead, and can in-house counsel pressure outside firms into handing over referral lists?

Plain-English summary

Lawyer A, vice president and general counsel of a bank, required the outside firms the bank used to submit quarterly reports naming every person or entity they referred to the bank for banking services, thanking the firms and adding that their efforts "will not [be] unrewarded." Lawyer B, one of those outside lawyers, named a client on a referral report without telling the client or disclosing that B might be rewarded. The questions were whether A's and B's conduct violated the Illinois Rules.

On Lawyer A, the opinion concluded the conduct was not improper "solicitation," because Rule 7.3 defines solicitation as contact with a non-lawyer to seek professional employment, and A was contacting lawyers and seeking customers for the bank rather than legal work for himself. The problem the opinion identified was coercion: A's non-specific promise of reward, coupled with the implied threat of losing the bank's business, could impair the outside lawyers' independent professional judgment under Rule 2.1, and inducing them toward conduct that violates the Rules would violate Rule 8.4(a)(2). The opinion noted the outside lawyers could properly list the names of non-clients as ordinary marketing.

On Lawyer B, the opinion concluded that giving clients' names to the bank without their knowledge breached the duty of confidentiality under Rule 1.6, reasoning that a client engaging a lawyer would not assume the lawyer would offer the client's name to outside entities, and that many users of legal services would not want it known that they need a lawyer. Drawing on Opinion No. 90-01, the opinion concluded that B must treat revealing the clients' names as a breach of confidence unless he learns otherwise, and must obtain the clients' affirmative consent before giving their names to the bank.

Currency note

This opinion was issued in 1997, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in January 2010 as generally consistent with the 2010 Rules (referring to Rules 1.6, 2.1, 7.3, and 8.4), while noting the specific standards referenced may differ from the 2010 Rules. 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Common questions

Q: Can a lawyer give a client's name to a bank as a potential customer?

A: Not without consent. The opinion concluded that a client's identity is confidential under Rule 1.6, so the lawyer must obtain the client's affirmative consent before giving the name to the bank.

Q: Was the general counsel's request for referral reports itself improper solicitation?

A: No. The opinion concluded that Rule 7.3's definition of solicitation did not apply, because the general counsel was contacting lawyers and seeking customers for the bank, not professional employment for himself.

Q: What made the general counsel's conduct problematic?

A: The opinion concluded that coercing the outside lawyers with a promise of reward and an implied threat could impair their independent judgment under Rule 2.1 and could violate Rule 8.4(a)(2) by inducing conduct that violates the Rules.

Q: Could the outside lawyers list anyone on the referral reports?

A: The opinion concluded they could properly list the names of non-clients as accepted marketing, but could not list clients without the clients' consent.

Background and rules framework

The opinion interpreted Rule 1.6 (confidentiality of information; Model Rule 1.6) as protecting a client's identity, Rule 2.1 (lawyer as advisor and independent professional judgment; Model Rule 2.1), Rule 7.3 (solicitation; Model Rule 7.3) and its definition of "solicit," and Rule 8.4(a) (misconduct, including inducing another to violate the Rules; Model Rule 8.4).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 (confidentiality of information) / Illinois Rule 1.6
• Model Rule 2.1 (advisor; independent professional judgment) / Illinois Rule 2.1
• Model Rule 7.3 (solicitation of clients) / Illinois Rule 7.3
• Model Rule 8.4 (misconduct) / Illinois Rule 8.4(a)

Other opinions cited:

• ISBA Advisory Opinions Nos. 90-01, 90-02, 92-16, 94-08, 96-02

See also

• ISBA Ethics Op. 97-05: For-Profit Referral Service
• ISBA Ethics Op. 22-02: Lawyer Participating in a For-Profit Client-Matching Service
• ISBA Ethics Op. 10-02: Reciprocal Referral Agreements

Source

• Landing page: https://www.isba.org/ethics/opinions/9701