May a law firm contact former criminal-defense clients to tell them about a new expungement law under which they might be eligible for relief?

Plain-English summary

The Committee was asked whether a firm could advise clients it had represented in past criminal proceedings of their rights under recent legislation, under which relief in the nature of expunging records of arrest might be available to such former clients.

The Committee found the proposed communication consistent with the letter and spirit of DR 2-104(A)(1). That rule generally bars a lawyer from accepting employment that results from unsolicited advice to a layman to obtain counsel or take legal action, but it carves out an exception that lets a lawyer accept employment from a close friend, relative, or former client where the advice is germane to the former employment, or from one the lawyer believes to be a client.

The Committee distinguished its Opinion 274, which involved solicitation of employment from persons who might have a claim against funds that would otherwise escheat. Unlike that situation, advising former criminal clients about a new expungement remedy fit squarely within the former-client exception.

Currency note

This opinion was issued in 1975, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates both the 1984 replacement of the Disciplinary Rules by the RPCs and the line of First Amendment decisions reshaping lawyer solicitation. The suggestion-of-need and former-client concern then in DR 2-104(A)(1) is now treated under RPC 7.3, with duties to former clients in RPC 1.9. 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 Treat this page as historical context, not current guidance.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: Can a lawyer reach out to former clients about a new law that might help them?

A: Under this opinion, yes, where the advice is germane to the former representation. The Committee found that within the former-client exception of DR 2-104(A)(1).

Q: Why was this not improper solicitation?

A: Because DR 2-104(A)(1) permits accepting employment from a former client based on unsolicited advice when the advice is germane to the former employment, and advising past criminal clients about expungement met that test.

Q: How was this different from the escheat-claim solicitation the Committee barred?

A: The Committee contrasted Opinion 274, which involved soliciting employment from people who might have claims against escheating funds, a situation outside the former-client exception relied on here.

Background and rules framework

The opinion applied DR 2-104(A)(1), the rule then governing acceptance of employment resulting from a lawyer's unsolicited advice, including its exception for former clients where the advice is germane to the prior representation. In current New Jersey terms, solicitation is governed by RPC 7.3 and duties to former clients by RPC 1.9.

Citations and references

Rules of Professional Conduct:

• DR 2-104(A)(1) (acceptance of employment from unsolicited advice; former-client exception), as in effect 1975; now MR 7.3 / NJ RPC 7.3 and MR 1.9 / NJ RPC 1.9

Other opinions cited:

• NJ ACPE Opinion 274, 96 N.J.L.J. 1437 (1973)

See also

• NJ ACPE Op. 319: Donating Legal Services for a Charity Auction
• NJ ACPE Op. 367: Suing a Former Client in an Unrelated Matter
• NJ ACPE Op. 382: A Successor to a Deceased Attorney Publishing Notice to Clients

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp303-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

98 N.J.L.J. 219, March 13, 1975

OPINION 303

Volunteering Advice to Former Clients

We are asked to advise whether a firm may advise clients who have been represented by the firm in criminal proceedings in the past of their legal rights under recent legislation under which relief may be available to such former clients in the nature of expunging records of arrest.

It seems to us entirely clear that the proposed communication is consistent with the letter and the spirit of DR 2-104(A)(1) which reads:

"Suggestion of Need of Legal Services

(A) A lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice, except that:

(1) A lawyer may accept employment by a close friend, relative, former client (if the advice is germane to the former employment), or one whom the lawyer believes to be a client."

This situation is to be contrasted with the circumstances described and dealt with in our Opinion 274, 96 N.J.L.J. 1437 (1973), which involved the solicitation of employment by those who might have a claim against funds which would otherwise escheat.