Can a North Carolina lawyer solicit legal business in person from people she knew through a prior non-legal career, like business contacts from when she was a consultant?

Plain-English summary

A lawyer, Smith, worked as a health care consultant after her bar admission and developed professional relationships with health care professionals. She then joined a law firm to practice health law and wanted to contact those professionals directly to tell them of her career change and her availability for legal work. The question is whether those prior consulting relationships are "prior professional relationships" under Rule 7.3(a), which would let her solicit them in person.

The committee answers yes. Rule 7.3(a) bars in-person, live-telephone, or real-time electronic solicitation for pecuniary gain, but exempts a person who "has a family, close personal, or prior professional relationship with the lawyer." The purpose of the prohibition, per comment [2], is to prevent undue influence, intimidation, and over-reaching; comment [5] explains that prior relationships are exempt because abuse is unlikely where such a relationship exists. "Professional relationship" is not defined in the Rules, but the committee points to 2000 FEO 9, which allowed a lawyer who had been a CPA at an accounting firm to solicit a person who had been a client of the accounting firm. That shows the phrase is not limited to prior lawyer-client relationships and includes business relationships such as a client-accountant relationship. So Smith's consulting relationships qualify, and she may directly contact those individuals to solicit legal work.

In practice

Under the North Carolina rules as they stood at the time of the opinion, the committee holds that the Rule 7.3(a) "prior professional relationship" exception reaches business relationships formed outside the practice of law. Per the opinion and 2000 FEO 9, the phrase includes relationships such as a client-accountant or, here, a consultant-client relationship, not only prior lawyer-client relationships. On that basis the opinion concludes the lawyer may engage in in-person solicitation of the health care professionals she worked with as a consultant. The committee grounds the result in the rule's purpose: the exception exists because the risk of undue influence, intimidation, and over-reaching is low when the lawyer already has such a relationship with the person contacted.

Common questions

Q: Can a North Carolina lawyer solicit business in person from contacts made in a prior non-legal career?

A: Yes. The opinion holds that a "prior professional relationship" under Rule 7.3(a) includes business relationships formed outside legal practice, so a lawyer may directly solicit the professionals she worked with as a consultant.

Q: Does "prior professional relationship" only mean a former lawyer-client relationship?

A: No. Relying on 2000 FEO 9, the opinion states the phrase is not limited to prior lawyer-client relationships and includes business relationships such as a client-accountant relationship.

Q: Why does Rule 7.3 exempt these relationships from the in-person solicitation ban?

A: Per comments [2] and [5], the ban targets the potential for undue influence, intimidation, and over-reaching; that risk is unlikely where the lawyer has a family, close personal, or prior professional relationship with the person, so those contacts are exempt.

Background and rules framework

The opinion interprets Rule 7.3 (Model Rule 7.3, solicitation of clients). Rule 7.3(a) prohibits in-person, live-telephone, or real-time electronic solicitation of professional employment for pecuniary gain, but exempts a person who has a family, close personal, or prior professional relationship with the lawyer. Comment [2] explains the rationale (the potential for undue influence, intimidation, and over-reaching in direct contact), and comment [5] explains why prior relationships are exempt.

Because "professional relationship" is undefined in the Rules, the committee relies on 2000 FEO 9, which treated a lawyer's prior client-accountant relationship as a qualifying "prior professional relationship."

Citations and references

Rules of Professional Conduct:

• Model Rule 7.3 / NC Rule 7.3(a) and cmts. [2], [5] (in-person solicitation; family, close personal, or prior professional relationship exception)

Other opinions cited:

• 2000 FEO 9: a lawyer who had been a CPA may solicit a person who was a client of the accounting firm, as a "prior professional relationship."

See also

• ABA Formal Op. 501: Solicitation of Clients
• Alabama Op. 2006-01: Direct Solicitation of Former and Present Clients
• NC State Bar 2017 FEO 1: Text Message Advertising

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2015-formal-ethics-opinion-7/

Original opinion text

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

Inquiry:

Smith is a lawyer and also holds a graduate degree. Following her admission to the North Carolina bar, Smith worked as a health care consultant for a health care consulting firm. During her years as a consultant, she developed a number of professional relationships with health care professionals. Recently, Smith joined a law firm where she concentrates on health law. She now wishes to contact directly those health care professionals with whom she developed professional relationships when she was a health care consultant. Her purpose in doing so is to inform the health care professionals of her career change and her availability to provide legal services in health care related matters.

Rule 7.3(a) prohibits a lawyer from soliciting professional employment from a potential client for the lawyer’s pecuniary gain via "in-person, live telephone, or real-time electronic contact..." Among the exceptions to the rule, a lawyer is not prohibited from soliciting professional employment by direct contact if the person contacted "has a family, close personal, or prior professional relationship with the lawyer" [emphasis added].

Are Smith’s prior relationships with health care professionals "prior professional relationships" as that term is used in Rule 7.3(a), thereby allowing her to engage in in-person solicitation of the health care professionals?

Opinion:

Yes.

The purpose of the prohibition on in-person solicitation is to prevent undue influence, intimidation, and over-reaching by the lawyer. Comment [2] to Rule 7.3 provides:

There is a potential for abuse when a solicitation involves direct in-person, live telephone, or real-time electronic contact by a lawyer with someone known to need legal services....The situation is fraught with the possibility of undue influence, intimidation, and over-reaching.

The rule specifically exempts prior relationships because it is unlikely that a lawyer will engage in abusive practices when the lawyer has a family, close personal, or prior professional relationship with the person she is contacting. See Rule 7.3, cmt [5].

"Professional relationship" is not defined in the Rules of Professional Conduct. However, the Ethics Committee previously opined that a lawyer, who is also a certified public accountant working for an accounting firm, may call or visit a prospective client to solicit legal business if the lawyer established a "prior professional relationship" with the individual as a client of the accounting firm. See 2000 FEO 9. This indicates that the phrase "prior professional relationship" as used in Rule 7.3(a) is not limited to prior client-lawyer relationships, but includes business relationships such as client-accountant relationships. Therefore, the business relationships Smith developed while working as a health care consultant constitute "prior professional relationships" within the meaning of Rule 7.3(a), and Smith may directly contact these individuals to solicit legal employment.