Can a nonprofit legal aid lawyer solicit clients in person or by direct mail without the usual solicitation restrictions?

Plain-English summary

The Board addressed whether a nonprofit legal aid lawyer may solicit clients in ways the rules normally restrict, assuming the lawyer's salary is paid by the organization, is not tied to retaining new clients, and the lawyer receives no fee or share of any recovery. On in-person solicitation, Prof.Cond.R. 7.3(a) prohibits direct in-person solicitation when a significant motive is pecuniary gain. The Board relied on the U.S. Supreme Court's distinction between Ohralik v. Ohio State Bar Assn., which upheld discipline for in-person solicitation driven by pecuniary self-interest, and In re Primus, which held that in-person and mail solicitation by an ACLU lawyer for non-pecuniary, constitutionally protected reasons could not be disciplined. Comment [5] to Prof.Cond.R. 7.3 recognizes that rationale and protects participation in the activities of public or charitable legal-service organizations. The Board concluded a nonprofit legal aid lawyer may make a direct in-person solicitation of an unrepresented individual who would benefit, so long as the lawyer receives no fee or remuneration.

On direct mail, the Board explained that mail solicitation is generally permitted, but Prof.Cond.R. 7.3(c) ordinarily requires disclosing how the lawyer learned of the recipient's need, avoiding a predetermined evaluation of the case, and labeling the communication "ADVERTISING MATERIAL" or "ADVERTISEMENT ONLY." Because Comment [5] makes division (c) inapplicable when the lawyer is not motivated by pecuniary gain, a nonprofit legal aid lawyer may send a direct-mail solicitation to a defendant in need without complying with division (c). The lawyer should still comply with Prof.Cond.R. 7.3(d), verifying that a named defendant has been served before sending the letter, because the rule provides no relevant exception. The Board added that all such communications must still comply with Prof.Cond.R. 7.1's bar on false, misleading, or nonverifiable statements, and noted in footnotes that a volunteer lawyer soliciting for the organization must do so for nonpecuniary reasons and refer the client to the legal aid office.

In practice

Under this opinion, a nonprofit legal aid lawyer who will receive no fee or remuneration may solicit a prospective client in person, and may send a direct-mail solicitation to a defendant, without the pecuniary-solicitation restrictions that otherwise apply. Per the opinion, the in-person solicitation is permitted because the lawyer's motive is not pecuniary gain (Prof.Cond.R. 7.3(a) and cmt. [5]), and the mail solicitation need not satisfy Prof.Cond.R. 7.3(c) for the same reason. The opinion holds the lawyer should still verify under Prof.Cond.R. 7.3(d) that a named defendant has been served before sending a letter, and must comply with Prof.Cond.R. 7.1.

Common questions

Q: Can a legal aid lawyer approach an unrepresented person in court and offer to represent them?

A: The opinion concludes yes, so long as the lawyer will receive no fee or remuneration; because the motive is not pecuniary gain, the in-person solicitation bar in Prof.Cond.R. 7.3(a) does not apply.

Q: Can a legal aid lawyer mail a solicitation to people facing eviction?

A: Per the opinion, yes; the lawyer need not meet the Prof.Cond.R. 7.3(c) requirements because the lawyer is not motivated by pecuniary gain, but should verify under Prof.Cond.R. 7.3(d) that a named defendant has been served before sending the letter.

Q: Does this apply to a volunteer lawyer?

A: The opinion notes a volunteer who solicits in person for the organization must do so for nonpecuniary reasons and should refer the client to the legal aid office; solicitation to gain exposure or experience for the lawyer's own eventual benefit may violate Prof.Cond.R. 7.3(a).

Background and rules framework

The opinion interprets Prof.Cond.R. 7.3 (solicitation of clients; Model Rule 7.3) and its Comment [5], and Prof.Cond.R. 7.1 (communications concerning a lawyer's services; Model Rule 7.1), against the First Amendment framework of Ohralik and In re Primus.

Citations and references

Rules of Professional Conduct:

• Ohio Prof.Cond.R. 7.3(a), 7.3(c), 7.3(d) and cmt. [5] (Model Rule 7.3)
• Ohio Prof.Cond.R. 7.1 and cmt. [1] (Model Rule 7.1)

Cases:

• Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978), in-person solicitation for pecuniary gain
• In re Primus, 436 U.S. 412 (1978), constitutionally protected non-pecuniary solicitation
• NAACP v. Button, 371 U.S. 415 (1963), associational access to the courts
• Columbus Bar Assn. v. Bahan, 159 Ohio St.3d 479, 2020-Ohio-434, solicitation discipline

Other opinions cited:

• R.I. Ethics Op. 98-03 (volunteer solicitation motive)

See also

• Ohio BPC Op. 1989-025: Legal Aid Conflict and Referral to a Volunteer Project
• Ohio BPC Op. 2021-004: Competitive Keyword Online Advertising

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2023/02/Adv.-Op.-2023-02-Final.pdf

Original opinion text

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

OPINION 2023-02
Issued February 3, 2023
Withdraws Adv. Ops. 1990-11 and 1988-3

            Solicitation of Clients by Nonprofit Legal Aid Lawyers

SYLLABUS: A nonprofit legal aid lawyer may engage in direct in-person solicitation of
an individual who may benefit from representation when the lawyer will receive no fee
or remuneration in connection with the representation. A nonprofit legal aid lawyer may
send a direct mail solicitation to individuals facing legal action, so long as the lawyer
verifies that the individual has been served prior to sending the letter and the lawyer will
receive no fee or remuneration in connection with the representation.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.
 65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov

HON. D. CHRIS COOK RICHARD A. DOVE
CHAIR DIRECTOR
PATRICK M. MCLAUGHLIN D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL

                                   OPINION 2023-02
                                Issued February 3, 2023
                         Withdraws Adv. Ops. 1990-11 and 1988-3

                 Solicitation of Clients by Nonprofit Legal Aid Lawyers

SYLLABUS: A nonprofit legal aid lawyer may engage in direct in-person solicitation of
an individual who may benefit from representation when the lawyer will receive no fee
or remuneration in connection with the representation. A nonprofit legal aid lawyer may
send a direct mail solicitation to individuals facing legal action, so long as the lawyer
verifies that the individual has been served prior to sending the letter and the lawyer will
receive no fee or remuneration in connection with the representation.

APPLICABLE RULES: Prof.Cond.R. 7.1, 7.3

QUESTIONS PRESENTED:

     1).       May a nonprofit legal aid lawyer make a direct in-person solicitation to

represent an indigent defendant who has appeared in court without representation?

     2).       May a nonprofit legal aid lawyer send defendants facing an eviction action

a letter soliciting representation?

OPINION:

     This opinion assumes that the salary of the nonprofit legal aid lawyer discussed

below is paid by the employing organization. Further, the opinion also assumes that:

     1) the lawyer’s salary is not tied in any way to his or her retention of new clients
           for the organization;

Op. 2023-02 2

   2) the lawyer does not receive any fee or remuneration based on any specific
      client or the number of clients he or she represents; and

   3) the lawyer does not share in any monetary recovery gained by the client.

In-Person Solicitation of Clients by Nonprofit Legal Aid Lawyers

   The first question addresses the situation of a nonprofit legal aid lawyer who

attends court on behalf of one client and observes another individual who is appearing
in court without representation. The unrepresented individual appears to be a public-
assistance recipient who is attempting to defend himself in an eviction case. The court
refuses to consider procedural irregularities in the filing of the action and grants the
eviction. The nonprofit legal aid lawyer desires to offer his or her services to the indigent
individual.

   The solicitation of clients is governed by Prof.Cond.R. 7.3. The rule prohibits direct

in-person solicitation when a significant motive for doing so is pecuniary gain.
Prof.Cond.R. 7.3(a). In Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 98 S. Ct. 1912 (1978),
the Supreme Court recognized that the purpose of the rule against solicitation is to
“reduce the likelihood of overreaching and the exertion of undue influence on lay
persons, to protect the privacy of individuals, and to avoid situations where the lawyer’s
exercise of judgment on behalf of the client will be clouded by his own pecuniary self-
interest.” Id. at 461. See also Columbus Bar Assn. v. Bahan, 159 Ohio St.3d 479, 2020-Ohio-
434, ¶10. However, the Supreme Court in In re Primus, 436 U.S. 412, 98 S. Ct. 1893 (1978)
recognized that not every instance of in-person solicitation should be prohibited. Primus
held it unconstitutional and a violation of the First and Fourth Amendment for a state to
discipline an ACLU lawyer for her in-person and direct mail solicitation of women who
had been sterilized as a condition of continuation of Medicaid benefits. Id. The Supreme
Court relied on NAACP v. Button, 371 U.S. 415 (1963), for the proposition that “collective
activity undertaken to obtain meaningful access to the courts is a fundamental right
within the protection of the First Amendment.” Id. at 426 (other citation omitted). The
Supreme Court concluded that a broader protection was warranted for the lawyer’s
conduct in Primus.

   Comment [5] to Prof.Cond.R. 7.3 recognizes the Supreme Court’s rationale and

explains that when a lawyer is motivated by considerations other than the lawyer’s
Op. 2023-02 3

pecuniary gain, there is far less likelihood that a lawyer would engage in abusive
practices. Further, the comment also indicates that “division (a) is not intended to
prohibit a lawyer from participating in constitutionally protected activities of public or
charitable legal service organizations * * * whose purposes include providing or
recommending legal services to members or beneficiaries.” Id. Thus, a lawyer employed1
by a nonprofit legal aid organization that provides or recommends legal services to
individuals who qualify for its services may ethically make a direct in-person solicitation
to represent an individual who has appeared in court without representation.2 The
solicitation is permissible so long as the nonprofit legal aid lawyer will receive no fee or
remuneration for the representation.

Direct Mail Solicitation of Clients by Nonprofit Legal Aid Lawyers

    The second question addresses the situation of a nonprofit legal aid lawyer

soliciting defendants for representation in eviction actions after an eviction has been filed.
Because direct mail solicitation is clearly permitted pursuant to Prof.Cond.R. 7.3, the
question becomes whether a nonprofit legal aid lawyer is subject to the requirements
found in Prof.Cond.R. 7.3(c). Generally, when a letter soliciting professional employment
is directed to someone the lawyer reasonably believes to be in need of legal services the
lawyer must: 1) disclose how the lawyer became aware of the identity and specific legal
need of the addressee; 2) refrain from expressing any predetermined evaluation of the
merits of the case; and 3) include in the text of the letter and on the outside envelope the
recital – “ADVERTISING MATERIAL” or “ADVERTISEMENT ONLY.” Further, when
soliciting employment via written communication directed to a party who has been
named as a defendant, the lawyer must verify that the party has been served with notice
of the action. Prof.Cond.R. 7.3(d).

1 A lawyer who volunteers for a nonprofit legal aid organization and solicits a client in person on behalf of
the organization must do so for nonpecuniary reasons. The lawyer should refer the potential client to the
legal aid office, not his or her own office. Such a solicitation may violate Prof.Cond.R. 7.3(a) if a significant
motive of the volunteer lawyer is to gain exposure in the community or to gain experience necessary to
further the lawyer’s practice with the goal of eventual pecuniary benefit. See Bahan, supra and R.I. Ethics
Op. 98-03.
2 This opinion does not confine a nonprofit legal aid lawyer’s in-person solicitation of clients to the

courthouse only. Proper in-person solicitation based on the facts and circumstances may occur at other
locations.
Op. 2023-02 4

   The text of the rule provides exceptions to the requirements of division (c) when

the recipient of the letter: 1) is a lawyer; 2) is a family member; 3) has a close personal
relationship with the lawyer; or 4) has a prior professional relationship with the lawyer.
However, Comment [5] to Prof.Cond.R. 7.3 specifically states that the requirements of
division (c) are not applicable to “situations in which the lawyer is motivated by
considerations other than the lawyer’s pecuniary gain.” The direct mail solicitation
contemplated by the nonprofit legal aid lawyer appears designed to assist defendants in
recognizing their legal problems, making legal services available, and facilitating the
process of selection of a lawyer, not for the lawyer’s own pecuniary gain. Thus, a
nonprofit legal aid lawyer may send a direct mail solicitation to a defendant in need of
legal services without complying with the requirements of Prof.Cond.R. 7.3(c). However,
the nonprofit legal aid lawyer should comply with Prof.Cond.R. 7.3(d), if applicable, as
the rule and comments are silent as to any relevant exceptions regarding verification that
a defendant has been served with notice of an action before sending a written solicitation.

Other ethical considerations

   A nonprofit legal aid lawyer contacting a potential client in person or by direct

mail must comply with Prof.Cond.R. 7.1. The rule governs all communications about a
lawyer’s services. A lawyer may not make or use a false, misleading or nonverifiable
communication about the lawyer or the lawyer’s services. Prof.Cond.R. 7.1. Whatever
means are used to make a lawyer’s services known, statements about them must be
truthful. Id. at cmt. [1].