In Kentucky, may a lawyer make in-person or live-telephone solicitation of corporate officers or employees under a 'sophisticated client' exception?

Plain-English summary

The Committee was asked whether in-person or live-telephone solicitation of corporate officers or employees is permitted under a "sophisticated client" exception to Rule 7.3(a). It answered no. Rule 7.3(a) bars a lawyer from in-person or live-telephone contact to solicit professional employment from a prospective client with whom the lawyer has no family or direct prior professional relationship, and the Committee found nothing in the language suggesting any "sophisticated client" exception.

After extended discussion, the Committee and the Board agreed that all lawyers should abide by the same rules, that recognizing a "sophisticated client" exception might undermine enforcement and deterrence, and that any such exception should be made by a legislative body such as the Rules Committee. The opinion noted that a 1991 law-review article observed both the Model Code and the Model Rule contain clear prohibitions on in-person solicitation of corporate officers or employees who are neither attorneys nor current clients, and acknowledged that some bars permit soliciting other lawyers and that Illinois had amended its Rule 7.3 to define "solicit" as contact with a non-lawyer. The Board's position was that the Rule should be read and applied as written, without exceptions for "sophisticated clients" or "corporate counsel."

Currency note

This opinion was issued in 1992 and predates Kentucky's adoption of the 2002 Ethics 2000 revisions to the Rules of Professional Conduct; the Kentucky Bar Association notes the advertising rules were substantially revised and renumbered (Rules 7.1 and 7.3 are now within SCR 3.130(7.01)-(7.60)). Lawyers should consult the current rules and the Attorneys' Advertising Commission Regulations before relying on this opinion. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer solicit corporate officers in person if they were sophisticated clients?

A: No. The opinion concluded Rule 7.3(a) has no "sophisticated client" exception, so in-person or live-telephone solicitation of corporate officers or employees is prohibited.

Q: Why did the Committee reject the exception?

A: It reasoned that all lawyers should abide by the same rules, that an exception might undermine enforcement and deterrence, and that any exception should come from the Rules Committee, not interpretation.

Q: Did other states treat this differently?

A: The opinion noted that some bars permit soliciting other lawyers and that Illinois amended Rule 7.3 to define "solicit" as contact with a non-lawyer, but the Board chose to apply Kentucky's rule as written.

Background and rules framework

The opinion interprets KRPC 7.3(a) (in-person and live-telephone solicitation; Model Rule 7.3) and references KRPC 7.1 (communications about a lawyer's services; Model Rule 7.1), declining to read in any exception for sophisticated or corporate clients.

Citations and references

Rules of Professional Conduct:

• MR 7.3(a) / KRPC 7.3(a) (in-person or live-telephone solicitation)
• MR 7.1 / KRPC 7.1 (communications concerning a lawyer's services)

Other authorities:

• ABA Informal Op. 84-1504 (1984); California Op. 1981-61; Columbus (Ohio) Bar Op. 5; Illinois Rule 7.3
• Handler, Pflaum & Cozad, The Ethics of Solicitation of Business from Corporate Clients, 5 Geo. J. Legal Ethics 423 (1991)

See also

• KBA Ethics Op. E-369: Welcome-Package Coupon Solicitation
• KBA Ethics Op. E-367: Gifts to Realtors for Referrals
• KBA Ethics Op. E-385: Legal-Aid Referrals From Service Organizations

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-352.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-352
Issued: November 1992

Since the adoption of the Rules of Professional Conduct in 1990, the Kentucky Supreme
Court has made substantial revisions to rules governing the advertisement of legal
services. For example, this opinion refers to Rules 7.1 and 7.3, which were revised and
renumbered. Lawyers should consult the current version of the rules and comments,
SCR 3.130 (7.01-7.60) (available at http:/www.kybar.org) and the Attorneys'
Advertising Commission Regulations, before relying on this opinion.

Question:

Is "in person" or "live telephone" solicitation of corporate officers or employees
permitted under a "sophisticated client" exception to Rule 7.3(a)?

Answer:

No.

References:

SCR 3.130 - Professional Conduct, Rules 7.1 and 7.3; S. Handler, S. Pflaum and J.
Cozad, Commentary: The Ethics of Solicitation of Business from Corporate
Clients, 5 Georgetown Journal of Legal Ethics 423 (1991); ABA Informal Op.
84-1504 (1984); California Op. 1981-61 (1981); Columbus (Ohio) Bar Op. 5
(undated); Illinois Rule 7.3.
OPINION

Rule 7.3(a) provides:
A lawyer shall not by in-person or live telephone contact or solicit
professional employment from a prospective client with whom the lawyer has no
family or direct prior professional relationship. (emphasis added)
The language of Rule 7.3(a) does not suggest that there is or should be any "sophisticated
client" exception. After extended discussion the Ethics Committee and the Board of Governors
were in agreement that all lawyers should be required to abide by the same rules, and that the
recognition of a "sophisticated client" exception might undermine enforcement of the Rule and
negate any deterrent effect that it might have. Furthermore, it was felt that any such "exception"
should be made by a legislative body, such as the Rules Committee.
The 1991 article alluded to in our "References" section stated that "both (the Model Code
and the Model Rule) contain clear prohibitions on in-person solicitation of corporate officers or
employees who are neither attorneys nor current clients." Id. at 432.
Some bar committees have interpreted Rule 7.3 in a way that permits a lawyer to solicit
business from other lawyers. See, e.g., California Op. 1981-61; Columbus (Ohio) Bar Op. 5

(undated); Cf. ABA Informal Op. 84-1504 (1984). It has been suggested that Rule 7.3 may be
"interpreted" so as to permit contact with and solicitation of corporate counsel. See
Commentary: The Ethics of Solicitation of Business from Corporate Clients, supra. In Illinois,
Rule 7.3 was amended to state that "(t)he term 'solicit' means contact with a person other than a
lawyer… ."
While possible "interpretations" were discussed at the Committee level, it was the position
of the Board that the Rule should be read and applied as it is written, and without any exceptions
made for contacts with "sophisticated clients" or "corporate counsel." Such "amendments" may be
sought through the Rules Committee.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky
Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor
rule). The Rule provides that formal opinions are advisory only.