Can a New York lawyer contact a prospective client who, on a current client's recommendation, asked to be contacted?

Plain-English summary

A lawyer's current client, held in a detention center, recommended the lawyer to a fellow detainee. The fellow detainee told the client he wanted the lawyer to contact him about his defense, and the client passed along the prospective client's name and number. The lawyer never asked the client to make recommendations and paid nothing for it. The question is whether the lawyer may make that contact.

The opinion concludes the lawyer may. It applies Rule 7.2 (the prohibition on paying for referrals), reasoning that because nothing of value was given to the current client, the rule is not triggered; the committee notes the rule's own title is "Payment for Referrals" and that gratuitous referrals from current and former clients have never been treated as unethical.

The opinion also finds Rule 7.3's ban on in-person and telephone solicitation inapplicable. Per the opinion, solicitation is advertising initiated by or on behalf of the lawyer, and here the contact was invited by the prospective client rather than initiated by the lawyer. The committee compares it to returning a prospective client's voicemail or responding to a request for proposals. It adds that if, on first contact, it turns out the prospective client did not actually ask to be contacted, the lawyer must end the conversation, because going further would be prohibited solicitation.

The committee frames the test as: not who made the referral, but whether the lawyer initiated the solicitation or paid for the referral. It also cautions, under Rule 8.4(a), that a lawyer cannot use a current client or anyone else to solicit a specific person the lawyer could not solicit directly.

In practice

Under this opinion, the analysis turns on two facts: whether the lawyer initiated the contact and whether the lawyer paid or gave anything of value for the referral. Per the opinion, when both answers are no (an unpaid, unsolicited recommendation that the prospective client invites the lawyer to act on), the lawyer may make the contact. The opinion notes the same conclusion in N.Y. City 2000-1, Texas Opinion 623, Boston Opinion 2012-01, and Rhode Island Opinion 98-16.

The opinion holds that Rule 8.4(a) still bars a lawyer from doing indirectly, through a client or third party, what the lawyer could not do directly, so a lawyer may not instigate someone to solicit a specific prospective client the lawyer could not lawfully solicit.

Common questions

Q: Can a New York lawyer return contact to someone a client referred who asked to hear from the lawyer?

A: Yes, under this opinion, provided the lawyer did not initiate the referral and paid nothing for it. The committee treats the lawyer's call as a response to an invited contact, not a lawyer-initiated solicitation (paragraphs 8, 10).

Q: Does Rule 7.2's referral-payment rule prohibit accepting an unpaid client recommendation?

A: No. The opinion explains (paragraph 5) that Rule 7.2 targets payment for referrals; where nothing of value is given to the person recommending the lawyer, the rule does not apply.

Q: When would contacting a referred prospective client become improper solicitation?

A: The opinion says (paragraph 8) that if, on the initial contact, it is apparent the prospective client did not actually request to be contacted, the lawyer must stop, because continuing would be prohibited in-person or telephone solicitation under Rule 7.3(a)(1).

Q: Can a lawyer ask a client to recruit a specific new client?

A: No. Under Rule 8.4(a), the opinion states (paragraph 11) that a lawyer cannot instigate a client or anyone else to solicit a specific prospective client the lawyer could not solicit directly, though encouraging clients to recommend the lawyer generally is permitted.

Background and rules framework

The opinion interprets New York's advertising and solicitation rules: Rule 7.2 (Model Rule 7.2), which prohibits paying or giving anything of value to a person for recommending the lawyer's services; Rule 7.3 (Model Rule 7.3), which restricts in-person and telephone solicitation and defines solicitation as advertising initiated by or on behalf of the lawyer; Rule 1.0(a), which defines "advertisement"; and Rule 8.4(a) (Model Rule 8.4), which bars doing through another what the lawyer cannot do directly.

The committee situates the question in the longstanding view that client recommendations are a traditional and proper source of new business, tracing it back to the 1908 ABA Canons, and frames the line between a permitted referral and prohibited conduct around payment and who initiated the contact.

Citations and references

Rules of Professional Conduct:

• New York RPC 7.2 (payment for referrals) / Model Rule 7.2
• New York RPC 7.3 (solicitation and recommendation of professional employment) / Model Rule 7.3
• New York RPC 1.0(a) (definition of advertisement)
• New York RPC 8.4(a) (misconduct; acts through another) / Model Rule 8.4

Other opinions cited:

• N.Y. State 988 (2013): not improper to accept unpaid referrals from accountants and bankers
• N.Y. State 467 (1977): not improper to accept referrals from real estate brokers
• ABA Informal 1298 (1974): gratuitous referrals from clients are not unethical
• N.Y. City 2000-1 (2000), Texas Op. 623 (2013), Boston Op. 2012-01 (2012), Rhode Island Op. 98-16 (1998): same conclusion in other jurisdictions

See also

• NY State Bar Op. 1049: Responding to and Posting Online Requests for a Lawyer
• NY State Bar Op. 1039: Blog Opt-In Box as Advertising or Solicitation
• NY State Bar Op. 1016: Advertising by Email to Internet Message Boards
• NY State Bar Op. 1068: Claims-Recovery Firm Referrals, UPL, and Fee-Splitting

Source

• Landing page: https://nysba.org/ethics-opinion-1014/