Ezel / Ethics Opinions / NYSBA
NYSBA 2014-08-04

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

Short answer: Yes. The opinion concludes a lawyer may contact such a prospective client as long as the lawyer did not initiate the contact and paid nothing for the recommendation; an unsolicited referral that the prospective client invites is not prohibited solicitation.
Currency note: this opinion is from 2014
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 1014: Contacting a Prospective Client on a Client's Recommendation

Short answer: A lawyer may contact a prospective client (here, a detainee who asked to be contacted) when a current client passes along that the prospective client wants to hear from the lawyer, as long as the lawyer did not initiate the referral and paid nothing for it.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

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

Source