I'm suing a club on behalf of a member, and I found a list of other members in the same situation through discovery. Can I write to them for information about the club's practices without triggering the lawyer-advertising solicitation rules?

Plain-English summary

The inquiring attorney represents a client suing a Golf Club, alleging the club's membership agreement is unfair and unconscionable, in connection with the client's attempt to withdraw from the membership plan and recover an initiation payment from the membership-redemption waiting list. Through discovery, the attorney obtained a list of other members also on the redemption waiting list and wants to send them a letter seeking further information about the club's redemption process, but is concerned the letter might run afoul of Rule 7.3's restrictions on direct contact with prospective clients. The attorney submitted a proposed letter for the panel's review.

The panel reviewed the letter and found it went beyond a request for information. Beyond identifying the client, describing the lawsuit, and asking members to contact the attorney about the redemption process and representations made when they joined, the letter also described the redemption process, asserted the attorney's position that it is unfair and unconscionable, disclosed deposition testimony that only a small number of members received initiation-fee refunds over the prior decade, and, in a lengthy paragraph, described how recent bylaw changes deliberately impede refunds, argued new-member classifications make it unlikely a resigning member would live to see a refund, and compared the club to "Hotel California." The panel concluded this went too far and reads more as a solicitation for professional employment than a request for case-related information, so it must comply with Rule 7.3(c) and (d), which require the words "Advertising Material" on the communication and copies retained and sent to Disciplinary Counsel.

The panel explained that the Rules permit a lawyer to contact persons with knowledge related to a client's lawsuit by letter or advertisement without complying with Rule 7.3, citing its own Opinion No. 2009-04, which allowed a plaintiff's attorney to advertise in a newspaper asking a defendant's patients to come forward with information without complying with Rules 7.2 and 7.3. A properly limited letter here would simply state that the attorney represents a club member suing the club, is seeking information about the redemption process, and is asking members to contact the attorney for that purpose, without the argumentative and case-promoting content. The panel also advised that if members respond, the attorney must comply with Rule 4.3 governing dealings with unrepresented persons.

In practice

The opinion holds that a letter to non-client witnesses or similarly situated persons, limited to identifying the representation, stating the information being sought, and asking the recipient to make contact, does not trigger Rule 7.3's solicitation requirements. But a letter that goes further, arguing the merits of the claim, characterizing the opposing party's conduct, or disclosing case evidence to persuade the reader, reads as a solicitation for professional employment and must carry the "Advertising Material" label and copy-retention and filing requirements of Rule 7.3(c) and (d).

Common questions

Q: Can I write to potential witnesses I found through discovery without following the lawyer-advertising rules?

A: Yes, if the letter is limited to identifying the case and asking for information. The opinion holds such a letter does not require compliance with Rule 7.3.

Q: What turned this particular letter into a solicitation?

A: The opinion points to the additional paragraphs arguing the club's practices are unfair and unconscionable, disclosing deposition testimony, and describing bylaw changes and member classifications in argumentative terms, including a rhetorical comparison to "Hotel California," none of which were necessary to request information.

Q: If club members respond to my letter, what else do I need to keep in mind?

A: The opinion advises the attorney must then comply with Rule 4.3, which governs a lawyer's dealings with an unrepresented person.

Background and rules framework

The opinion applies Rhode Island Rule 7.3 (Direct Contact With Prospective Clients). Rule 7.3(c) requires a written, recorded, or electronic solicitation of professional employment from a prospective client known to need legal services in a particular matter to carry the words "Advertising Material," and Rule 7.3(d) requires a copy be sent to Disciplinary Counsel and retained by the lawyer for three years (a single copy with a distribution list suffices for identical mailings). The opinion also references Rule 4.3 (dealing with unrepresented persons) for any responses the letter generates.

Citations and references

Rules of Professional Conduct:

• MR 7.3(c) (advertising-material label for solicitation communications)
• MR 7.3(d) (copy retention and filing with Disciplinary Counsel)
• MR 4.3 (dealing with an unrepresented person, referenced for follow-up contact)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• Rhode Island Supreme Court Ethics Advisory Panel Op. 2009-04: a plaintiff's attorney may place a newspaper advertisement asking a defendant's patients to contact the attorney with information, without complying with Rules 7.2 and 7.3.

See also

• ABA Formal Op. 07-445: Contact by Counsel With Putative Members of a Class Prior to Class Certification
• ABA Formal Op. 501: Solicitation

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2013-02.pdf

Original opinion text

Final

                        Rhode Island Supreme Court
                      Ethics Advisory Panel Op. 2013-02
                            Issued March 13, 2013

FACTS:

    The inquiring attorney represents a client who is attempting to withdraw from

his/her membership plan at a Golf Club. The client is on a membership-redemption
waiting list, seeking the return of his/her initiation payment pursuant to the Golf Club's
membership plan. In a pending lawsuit against the Golf Club, the inquiring attorney's
client has alleged that the membership agreement is unfair and unconscionable. The
inquiring attorney has obtained through discovery a list of other Club members who are
also on the redemption list.

    The inquiring attorney wants to send a letter to each of the members on the list in

an effort to obtain further information about the Golf Club's redemption process, but
states that he/she is concerned about running afoul of Rule 7.3 of the Rules of
Professional Conduct entitled "Direct contact with prospective clients." The inquiring
attorney submitted a proposed letter to the Panel.

ISSUE PRESENTED:

 Is it a violation of Rule 7.3 if the inquiring attorney sends the proposed letter to

members of a Golf Club, asking them to contact the inquiring attorney about the
membership-redemption process?

OPINION:

    The inquiring attorney may send a letter to Golf Club members seeking

information about his/her client's case without complying with Rule 7.3, but not the
proposed letter. The letter submitted by the inquiring attorney appears to be a
solicitation, and therefore the inquiring attorney must comply with the requirements of
Rule 7.3(c) and (d) if he/she sends it.

REASONING:

     Rule 7.3 entitled "Direct contact with prospective clients" applies

to this inquiry. In pertinent part, the Rule states as follows:
Final Op. 2013-02
Page |2

            (c) Every written, recorded or electronic communication
            from a lawyer soliciting professional employment from a
            prospective client known to be in need of legal services in a
            particular matter shall include the words "Advertising
            Material" on the outside envelope, if any, and at the
            beginning and ending of any recorded or electronic
            communication, unless the recipient of the communication
            is a person specified in paragraphs (a)(1), (a)(2), or (a)(3).

            (d) A copy of each such communication shall be sent to the
            Supreme Court Disciplinary Counsel and another copy
            shall be retained by the lawyer for three (3) years. If
            communications identical in content are sent to two (2) or
            more prospective clients, the lawyer may comply with this
            requirement by sending a single copy together with a list of
            the names and addresses of personal [sic] to whom the
            communication was sent to the Supreme Court Disciplinary
            Counsel as well as retaining the same information.

    The Panel has reviewed the proposed letter submitted by the inquiring attorney in

the instant inquiry. The letter states that the inquiring attorney represents X, a member of
the Golf Club who is on the membership-redemption waiting list; states that he/she filed a
lawsuit against the Club; states that the inquiring attorney is looking to obtain
information about the redemption process and about representations made to the member
upon joining the Club; and asks the member to contact the inquiring attorney. The
inquiring attorney's letter should, but does not, stop there. In additional paragraphs, the
inquiring attorney describes the Club's redemption process, states the inquiring attorney's
position that the redemption process is unfair and unconscionable, and discloses that at a
recent deposition it was learned that only a small number of members received a return of
the initiation fee over the last ten years. In a separate lengthy paragraph, the inquiring
attorney describes with particularly how recent changes to the Golf Club's bylaws
deliberately impede the return of initiation payments; states that arbitrary new-member
classifications make it highly unlikely that a resigning member will live to see the return
of his or her initiation payment; and likens the Golf Club to "Hotel California, where you
can get in anytime you want but you can never leave."

    In the Panel's view, the proposed letter goes too far, and it appears to be more a

solicitation for professional employment than a request for information from persons
having knowledge of matters related to the inquiring attorney's client's case. As such,
the proposed letter must comply with the requirements of Rule 7.3.
Final Op. 2013-02
Page |3

   The Panel believes, however, that the Rules permit lawyers to contact persons

who have knowledge related to their clients' lawsuits by letter or advertisement without
complying with Rule 7.3. See Rhode Island Supreme Court Ethics Advisory Panel
Opinion No. 2009-04 (2004) (plaintiff's attorney may place advertisement in newspaper
asking patients of defendant to contact attorney with information on patient-history
questionnaires without complying with Rules 7.2 and 7.3.) Such a letter for this inquiry
would simply state that the inquiring attorney represents a Club member who is suing the
Golf Club; that the inquiring attorney is seeking information about the membership-
redemption process; and that the inquiring attorney is requesting Club members to
contact the inquiring attorney for this purpose. The restrictions of Rule 7.3(c) and (d)
would not apply to such a letter.

    The Panel concludes that the inquiring attorney may send a letter to Club

members seeking information about his/her client's case, without complying with Rule
7.3, but not the proposed letter. The letter submitted by the inquiring attorney appears to
be a solicitation for professional services, and therefore the inquiring attorney must
comply with the requirements of Rule 7.3(c) and (d) if he/she sends it. The Panel advises
the inquiring attorney that if Club members respond to his/her request for information,
the inquiring attorney must abide by Rule 4.3 (dealing with unrepresented person).