Ezel / Ethics Opinions / NYSBA
NYSBA December 15, 2009

Does a New York lawyer have to respond to unsolicited letters from incarcerated people asking the lawyer to take their case?

Short answer: No. The committee concludes that no Rule of Professional Conduct requires a lawyer to answer unsolicited mail from someone who is neither a client nor an adversary, and a person who sends such a letter is not a 'prospective client' under Rule 1.18 unless the lawyer discusses representation with them.

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This page answers the general question as of 2009. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2009
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 Not binding precedent.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 on this page) is the authoritative source for any reliance.

Plain-English summary

The committee was asked whether an attorney is ethically required to respond to unsolicited letters from incarcerated individuals seeking representation for personal injury or other claims. It concludes the answer is no.

The committee finds no provision of the New York Rules of Professional Conduct that imposes a general obligation to answer unsolicited mail at all. It notes that under the former Code, a duty to respond arose only for communications from a client or an adversary (citing N.Y. State 407 (1975) and N.Y. State 396 (1975)), and it does not decide whether such a duty to clients and other lawyers carries forward under the new Rules. The only generally applicable guideline for unsolicited inquiries from non-clients and non-adversaries is Standard IV of the New York Standards of Civility, which is aspirational and not enforceable through discipline. Even under that aspirational standard, the committee believes an unsolicited letter from an incarcerated person requesting representation does not, without more, reasonably require a response.

The committee adds that receiving a truly unsolicited request for representation does not create a lawyer-client relationship, citing Knigge v. Corvese. It also explains that under Rule 1.18 the sender does not become a "prospective client" unless the lawyer later discusses the possibility of forming a client-lawyer relationship: Rule 1.18(e)(1) excludes a person who unilaterally communicates information without any reasonable expectation that the lawyer is willing to discuss representation.

In practice

The opinion holds that, under the New York rules as they stood at the time, a lawyer has no disciplinary duty to answer an unsolicited letter from an incarcerated person who is neither a client nor an adversary, and that ignoring such a letter does not create a lawyer-client or prospective-client relationship under Rule 1.18. The committee expressly limits its holding to unsolicited communications from incarcerated individuals in that posture, and declines to decide two adjacent questions: whether a duty to respond to clients and other lawyers survives under the new Rules, and how an email sent in response to a law firm's website (which might not be "unsolicited") should be treated.

Common questions

Q: Must a New York lawyer reply to a prisoner's letter asking the lawyer to take a case?

A: No. The opinion concludes that no Rule of Professional Conduct requires a response to an unsolicited letter from an incarcerated person who is neither a client nor an adversary.

Q: Does ignoring the letter create a lawyer-client or prospective-client relationship?

A: No. The opinion states that a truly unsolicited request does not form a lawyer-client relationship, and that under Rule 1.18(a) and (e)(1) the sender is not a "prospective client" unless the lawyer discusses possible representation.

Q: Does the New York Standards of Civility require a reply?

A: The opinion explains that Standard IV is aspirational and not enforceable through discipline, and that even under it an unsolicited letter from an incarcerated person seeking representation does not, without more, reasonably require a response.

Background and rules framework

The opinion interprets New York Rule 1.18 (duties to a prospective client, the analogue of ABA Model Rule 1.18), specifically Rule 1.18(a) (defining "prospective client" as someone who discusses with a lawyer the possibility of a client-lawyer relationship) and Rule 1.18(e)(1) (excluding a person who unilaterally communicates information without a reasonable expectation that the lawyer will discuss representation). It also references the aspirational New York Standards of Civility (22 NYCRR Part 1200, app., Standard IV).

Citations and references

Rules of Professional Conduct:

  • MR 1.18 (duties to a prospective client)
  • NY RPC 1.18(a), 1.18(e)(1)

Other authority:

  • 22 NYCRR Part 1200, app., Standard IV (New York Standards of Civility, aspirational)
  • 22 NYCRR § 1210.1(5) (Statement of Client's Rights)

Cases:

  • Knigge v. Corvese, 2001 WL 830669 (S.D.N.Y. 2001), unsolicited voicemails seeking representation did not form an attorney-client relationship

Other opinions cited:

  • N.Y. State 407 (1975) and N.Y. State 396 (1975): duty to respond under the former Code arose for clients and fellow lawyers
  • N.Y. City 2001-1: confidentiality of information sent via a law firm website

See also

Source

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