Can a lawyer phone or mail potential co-plaintiffs to ask them to join litigation, and can the lawyer ask the client to do it instead?
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This page answers the general question as of 1993. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer wanted to ask investors in tax-oriented limited partnerships, who were not his clients, to join suits against the partnerships' sponsor. He asked three questions: whether his firm's written communications had to carry the word "advertisement," whether the firm could contact investors by telephone, and whether his client could contact other investors to tell them the lawyer might reach out.
The committee answered under DR 2-103 and DR 1-102(A)(2). On the written communications, it held that the controlling question was not whether the letter was technically an advertisement but whether it solicited professional employment for a fee; because a purpose of informing the investors was to be hired by them, DR 2-103(C)'s labeling requirement applied and the letter and envelope had to be marked "advertising." On the telephone question, DR 2-103(D) plainly prohibited telephone solicitation of professional employment for a fee. On the client-recruitment question, the committee said that while the client could on his own gather investors to hire the lawyer (and would not have to label his own letters), DR 1-102(A)(2) bars a lawyer from circumventing a disciplinary rule through the acts of another, so the lawyer could not suggest or participate in that effort.
The committee then offered an alternative path based on the legislative history of DR 2-103. The pre-1986 rule expressly allowed contacting others whose joinder was needed in class-action-type litigation "under applicable law," and the committee read the later removal of that sentence as eliminating surplus language rather than narrowing permitted solicitation, since the 1986 amendment was meant to expand solicitation. It concluded that if the contemplated suit is in the nature of a class action and the applicable law governing it permits methods of contact otherwise barred by the Disciplinary Rules, the rules would not prohibit those methods. Because the committee may not opine on substantive law, it noted the lawyer would have to decide whether his litigation was so governed, and that the opinion characterized requesting court permission for the specific contact methods as "perhaps the safest way to proceed."
Currency note
This opinion was issued in 1993, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. 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: Does a solicitation letter to prospective clients have to say "advertising"?
A: Under this opinion, yes, when it solicits employment for a fee. The committee held that because a purpose of the mailing was to be hired, DR 2-103(C) required the word "advertising" on the letter and its envelope.
Q: Can a lawyer telephone prospective clients to ask them to join a suit?
A: No. The committee said DR 2-103(D) clearly prohibited telephone solicitation of professional employment for a fee.
Q: Can the lawyer have the client recruit co-plaintiffs instead?
A: The committee said the lawyer may not suggest or participate in that effort, because DR 1-102(A)(2) bars circumventing a disciplinary rule through another's acts, even though the client acting entirely on his own would not be bound by the labeling rule.
Q: Is there an exception for class actions?
A: Yes. The committee concluded that if the suit is in the nature of a class action and applicable law permits otherwise-prohibited contact, the Disciplinary Rules would not bar those methods.
Background and rules framework
The opinion applied DR 2-103 (restrictions on solicitation of employment for a fee, including the labeling of written solicitations and the bar on telephone solicitation), corresponding to Model Rule 7.3, and DR 1-102(A)(2) (a lawyer shall not circumvent a disciplinary rule through the actions of another), corresponding to Model Rule 8.4(a). The committee traced the 1986 amendment history of DR 2-103 to read the class-action contact exception.
Citations and references
Rules of Professional Conduct:
- Model Rule 7.3 / DR 2-103 (solicitation of clients; labeling of written solicitations)
- Model Rule 8.4(a) / DR 1-102(A)(2) (violating the rules through the acts of another)
Cases:
- In the Matter of Amendment to SJC Rule 3:07, DR 2-103 and DR 2-104, 398 Mass. 73 (1986) (1986 amendment of the solicitation rules)
Other opinions cited:
- MBA Opinion 82-8 (causing another to violate a disciplinary rule)
See also
- MA Bar Ethics Op. 97-4: Mailing cards to accident victims
- MA Bar Ethics Op. 94-10: Advertising contingent fee rates
Source
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