Can a lawyer autodial potential clients with a recorded message and let them press a button to be connected to the firm?

Plain-English summary

A lawyer proposed soliciting business by autodialing people not on the do-not-call list and playing a recorded message about elder-care government programs. If the recipient pressed "1" he would hear a short informational message; at the end, pressing "2" would connect him directly to a person at the firm. The question is whether this complies with the Rules of Professional Conduct. (An editor's note adds that G.S. § 75-104 may render the opinion moot.)

The opinion explains that Rule 7.2(a) permits advertising through written, recorded, or electronic communications, subject to Rule 7.1 (truthful and not misleading) and Rule 7.3 (limits on direct contact with potential clients). Rule 7.3(a) bars in-person, live telephone, or real-time electronic solicitation for pecuniary gain because of the potential for undue influence, intimidation, and overreaching when a trained advocate importunes a layperson in a direct interpersonal encounter. The comments distinguish that prohibited live contact from recorded or autodialed communications, which let a potential client receive information without being subjected to direct persuasion.

The opinion concludes that recorded telephone advertising messages are permitted, but Rule 7.3(a) and its comments do not contemplate a recorded message leading to an interpersonal encounter with a lawyer at the push of a button. A potential client must have an opportunity to contemplate the information received, which cannot happen if a brief, unexpected, unsolicited call leads to an immediate encounter with the lawyer, even if the recipient chooses to press a key. The lawyer may therefore autodial a truthful, non-misleading recorded message, but may not include a means for immediate connection to a lawyer; instead the message may provide a phone number or contact information so the potential client can call later after considering it. The opinion grounds this in comment [3] to Rule 7.3, which favors a "clean" and "free" flow of recorded information that can be reviewed, as opposed to disputable live conversations.

In practice

Under the North Carolina rules as they stood at the time of the opinion, the analysis turns on whether the recorded solicitation gives the recipient room to consider the information or instead funnels into a live encounter. The opinion holds that an autodialed recorded message is permitted if it is truthful and not misleading and does not connect the recipient immediately to a lawyer; a press-to-connect feature crosses into prohibited live solicitation under Rule 7.3(a).

Per the opinion, a compliant message provides contact information so the potential client may call the firm later, preserving the chance to evaluate the information before any direct contact.

Common questions

Q: Can a lawyer use autodialed recorded messages to advertise?

A: Yes. The opinion concludes a lawyer may autodial potential clients and play a recorded message, provided it is truthful and not misleading under Rules 7.2(a) and 7.1.

Q: Can the recorded message let the person press a button to talk to the firm right away?

A: No. The opinion concludes the message may not include a means for the recipient to be immediately connected with a lawyer or the lawyer's agent, because that creates the kind of live, interpersonal solicitation Rule 7.3(a) prohibits.

Q: How can the recorded message invite a response without violating the rule?

A: By giving contact information. The opinion concludes the message may provide a phone number or other contact information so the potential client can call the firm later, after contemplating the recorded information.

Background and rules framework

The opinion applies North Carolina Rule 7.2(a) (advertising through written, recorded, or electronic communications), Rule 7.1 (communications about a lawyer's services must be truthful and not misleading), and Rule 7.3(a) (prohibiting in-person, live telephone, or real-time electronic solicitation for pecuniary gain), with reference to comments [1], [2], and [3] to Rule 7.3. These track Model Rules 7.2, 7.1, and 7.3. The opinion treats the press-to-connect feature as converting a permitted recorded communication into prohibited live contact.

Citations and references

Rules of Professional Conduct:

• MR 7.2 / NC Rule 7.2(a) (advertising through written, recorded, or electronic communications)
• MR 7.1 / NC Rule 7.1 (communications must be truthful and not misleading)
• MR 7.3 / NC Rule 7.3(a), cmts. [1]-[3] (prohibition on live solicitation; clean flow of recorded information)

Statutes:

• N.C. Gen. Stat. § 75-104 (autodialer restrictions; editor's note flags it may render the opinion moot)

See also

• NC 2007 FEO 4: Solicitation, Gifts, and Business Cards
• NC 2007 FEO 15: Requirements for Targeted Direct Mail
• ABA Formal Op. 501: Solicitation

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2006-formal-ethics-opinion-17/

Original opinion text

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

Editor's Note: G.S. § 75-104 may render this opinion moot.

Inquiry:

Attorney would like to solicit professional employment by use of a recorded telephone message. He intends to obtain telephone numbers from the census bureau's database of persons who are not on the "do not call" list for commercial solicitations by telephone. Attorney's law firm (or a service hired by the firm) will autodial the people on the list. When a person answers the phone, he will hear the following recorded message:

This is an announcement of the Tax, Estate & Elder Planning Center, a North Carolina law firm. Have you or your loved ones experienced the overwhelming cost of nursing home, assisted living, or in home care? The Tax, Estate & Elder Planning Center would like for you to know more about government programs that may help cover these costs while protecting your savings. If you would like to know more about these programs press one now.

If the recipient presses the number one on the key pad of his phone, he will hear a short pre-recorded informational message on programs such as Medicaid, Special Assistance, and veterans' benefits. Whether the recipient opts to listen to the message or not, he will hear the following recorded message at the end of the phone call:

If you are interested in knowing more about how to qualify for these programs, then press two to be connected with a representative of the Tax, Estate & Elder Planning Center Law Firm. Thank you for taking time to listen to this announcement.

If the recipient of the phone call follows the prompts, he will be connected with a person at Attorney's law firm.

Does this comply with the Rules of Professional Conduct?

Opinion:

Rule 7.2(a) permits a lawyer to advertise services through "written, recorded, or electronic communications" subject to the requirements of Rule 7.1 and Rule 7.3. Rule 7.1 requires all communications about a lawyer and the lawyer's services to be truthful and not misleading. Rule 7.3 limits direct contact with potential clients for the purpose of soliciting business. Rule 7.3(a) provides that "A lawyer shall not by in-person, live telephone, or real-time electronic contact solicit professional employment from a potential client when a significant motive of the lawyer's doing so is the lawyer's pecuniary gain." The comment explains the prohibition as follows:

[1] There is a potential for abuse inherent in direct in-person, live telephone, or real-time electronic contact by a lawyer with a prospective client known to need legal services. These forms of contact between a lawyer and a prospective client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter. The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer's presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and over-reaching.

[2] This potential for abuse inherent in direct in-person, live telephone, or real-time electronic solicitation of potential clients justifies its prohibition, particularly since lawyer advertising and written and recorded communication permitted under Rule 7.2 offer alternative means of conveying necessary information to those who may be in need of legal services. Advertising and written and recorded communications which may be mailed or autodialed make it possible for a potential client to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting the potential client to direct in-person, telephone or real-time electronic persuasion that may overwhelm the client's judgment.

The rule and the comment distinguish a prohibited live telephone call from a lawyer in which "the layperson [is subject] to the private importuning of the trained advocate in a direct interpersonal encounter" from "recorded communications which may be autodialed...without subjecting the potential client to direct in-person, telephone, or real-time electronic persuasion that may overwhelm the client's judgment."

Although it appears that recorded telephone advertising messages are permitted by the Rules of Professional Conduct, Rule 7.3(a) and the comment to the rule do not contemplate that a recorded message will lead to an interpersonal encounter with a lawyer (or the lawyer's agent) at the push of a button on the telephone key pad. To avoid the risks of undue influence, intimidation and, over-reaching, a potential client must be given an opportunity to contemplate the information about legal services received in a recorded telephone solicitation. This cannot occur if a brief, unexpected, and unsolicited telephone call leads to an in-person encounter with a lawyer, even if the recipient of the phone call must choose to push a number to be connected with the lawyer.

Therefore, Attorney may autodial potential clients and play a recorded message provided the message is truthful and not misleading. He may not, however, include a means for the recipient of the call to be immediately connected with a lawyer (or an agent of the lawyer). Instead, the message may provide a telephone number or other contact information for the lawyer or the lawyer's firm so that the potential client may subsequently call the lawyer or law firm after contemplating the information received from the recorded message. Comment [3] to Rule 7.3 supports this "clean" and "free" flow of information to potential clients:

The use of general advertising and written, recorded, or electronic communications to transmit information from lawyer to potential client, rather than direct in-person, live telephone, or real-time electronic contact, will help to assure that the information flows cleanly as well as freely. The contents of advertisements and communications permitted under Rule 7.2 can be permanently recorded so that they cannot be disputed and may be shared with others who know the lawyer. This potential for informal review is itself likely to help guard against statements and claims that might constitute false and misleading communications, in violation of Rule 7.1. The contents of direct in-person, live telephone, or real-time electronic conversations between a lawyer and a potential client can be disputed and may not be subject to third-party scrutiny. Consequently, they are much more likely to approach (and occasionally cross) the dividing line between accurate representations and those that are false and misleading.