May my law firm email other Rhode Island lawyers, using publicly listed bar email addresses, to ask them to refer clients to us in our practice areas?

Plain-English summary

The inquiring attorney's firm proposed to send emails to members of the Rhode Island Bar, using email addresses publicly available on the judiciary website, to advise them of the firm's practice areas and invite referrals of clients. The attorney asked whether the Rules of Professional Conduct permit this and also asked about the federal CAN-SPAM Act.

The panel concluded the emails are permitted. Rule 7.3 prohibits, with limited exceptions, direct in-person, live-telephone, or real-time electronic contact to solicit professional employment when a significant motive is the lawyer's pecuniary gain, but the rule expressly excepts a person contacted who "is a lawyer." Because the proposed emails are lawyer-to-lawyer communications, they are not prohibited solicitations under Rule 7.3. And because they will be sent only to lawyers, not to consumers of legal services, they are not advertisements under Rule 7.2, citing the panel's Opinions 92-22 (1992) and 89-17 (1989).

The panel explained that advertising regulation serves to protect potential clients from false or misleading advertising and to give consumers access to information about legal services, objectives not implicated when the recipients are lawyers, each of whom can advise any client about the firm's services. Although the Rule 7.2 advertising restrictions and Rule 7.3 solicitation restrictions do not apply, the firm must still comply with Rule 7.4 on communicating fields of practice and specialization, and with Rule 7.1, which prohibits false or misleading communications about a lawyer's services. Finally, the panel declined to address the CAN-SPAM Act of 2003, explaining its jurisdiction is limited to interpreting the Rules of Professional Conduct.

In practice

Under this opinion, and under the Rhode Island rules as they stood at the time, a firm may email other lawyers to solicit client referrals without treating the emails as regulated solicitations or advertisements. The panel held that the Rule 7.3 solicitation bar does not apply because the recipients are lawyers, and the Rule 7.2 advertising rules do not apply because the emails do not reach consumers. The opinion holds the firm must still comply with Rule 7.1 (no false or misleading communications) and Rule 7.4 (communicating fields of practice). The panel expressly did not opine on whether the federal CAN-SPAM Act applies.

Common questions

Q: Can I email other lawyers to ask for client referrals?

A: The panel said yes. Lawyer-to-lawyer emails are not prohibited solicitations under Rule 7.3, which excepts contact with a person who is a lawyer, and they are not advertisements under Rule 7.2 because they do not reach consumers.

Q: Do the advertising rules apply to emails sent only to lawyers?

A: The panel said no. Because the emails will not be transmitted to consumers of legal services, they are not advertisements under Rule 7.2, though Rules 7.1 and 7.4 still apply.

Q: What rules do still apply to these emails?

A: The panel said the firm must comply with Rule 7.1, which prohibits false or misleading communications, and Rule 7.4, on communicating fields of practice and specialization.

Q: Did the panel address the federal CAN-SPAM Act?

A: No. The panel said its jurisdiction is limited to interpreting the Rules of Professional Conduct, so it did not consider CAN-SPAM or other law.

Background and rules framework

The opinion applies Rule 7.3 (Model Rule 7.3, solicitation of clients), which bars certain direct real-time solicitation for pecuniary gain but excepts contact with a lawyer; Rule 7.2 (Model Rule 7.2, advertising), which regulates public dissemination of information about a lawyer's services; Rule 7.1 (Model Rule 7.1, communications concerning a lawyer's services), which bars false or misleading communications; and Rule 7.4 (communication of fields of practice and specialization). The panel declined to interpret the federal CAN-SPAM Act of 2003.

Citations and references

Rules of Professional Conduct:

• MR 7.3 (solicitation of clients; lawyer exception)
• MR 7.2 (advertising)
• MR 7.1 (communications concerning a lawyer's services)
• RI RPC 7.3, 7.2, 7.1, 7.4

Statutes:

• CAN-SPAM Act of 2003 (mentioned by the inquiry; the panel declined to interpret it)

Cases:

• None cited.

Other opinions cited:

• RI EAP Op. 92-22 (1992) (communications directed only to lawyers are not advertisements)
• RI EAP Op. 89-17 (1989) (same)

See also

• ABA Formal Op. 501: Solicitation Under Model Rule 7.3
• ABA Formal Op. 10-457: Lawyer Websites
• RI EAP Op. 2025-07: Referral Arrangement With a Trainer "Firm"

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%2016-07.pdf

Original opinion text

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

Rhode Island Supreme Court
Ethics Advisory Panel Op. 2016-07
Issued July 14, 2016

FACTS

The inquiring attorney's law firm proposes to send e-mails to members of the Rhode Island Bar seeking referrals of clients in the law firm's areas of practice. The inquiring attorney states that e-mail addresses of members of the Bar are publically available on the Rhode Island judiciary website. In addition to the Rhode Island Rules of Professional Conduct on advertising and solicitation, the inquiring attorney asks about the effect of the Can-Spam Act on this proposal.

ISSUE PRESENTED

The inquiring attorney asks whether the Rules of Professional Conduct permit his/her law firm to send e-mails to members of the Bar for the purpose of seeking referrals of clients.

OPINION

Sending e-mails to members of the Rhode Island Bar for the purpose of seeking referrals of clients is permitted under the Rules of Professional Conduct. The proposed lawyer-to-lawyer e-mails are neither solicitations under Rule 7.3, nor advertisements under Rule 7.2. The law firm must comply with Rule 7.1 and Rule 7.4.

REASONING

The inquiring attorney's law firm proposes to send e-mails to other lawyers advising them of the firm's areas of practice, and inviting them to refer clients to the firm with cases relating to those practice areas. Rule 7 of the Rules of Professional Conduct governs attorney conduct relating to information about legal services, and contains regulations on solicitation and advertising.

Rule 7.3 prohibits, with limited exceptions, direct contact with prospective clients. Rule 7.3 (a) states:

(a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted:

(1) is a lawyer;

(2) has a family, close personal, or prior professional relationship with the lawyer; or

(3) is a business organization, a not-for-profit organization, or governmental body and the lawyer seeks to provide services related to the organization.

The proposed e-mails are lawyer-to-lawyer communications, and are therefore not prohibited solicitations under Rule 7.3. Because the proposed e-mails will be sent only to lawyers, they are also not advertisements under Rule 7.2 entitled "Advertising." See R.I. Supreme Court Ethics Advisory Panel Op. 92-22 (1992) and R.I. Supreme Court Ethics Advisory Panel Op. 89-17 (1989).

Rule 7.2 permits public dissemination of information about lawyers and their services. In pertinent part the Rule states as follows:

(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.

The remaining paragraphs of the Rule, not applicable to this inquiry, set forth filing requirements and other regulations on lawyer advertising.

Advertising regulations for lawyers support two important objectives, namely, to protect potential clients from advertising that is false or misleading, and to provide consumers with access to information about legal services, particularly in the case of persons of moderate means who may not have had extensive use of legal services. See Comment 1, Rule 7.2. The law firm's proposed e-mails in this inquiry will not be transmitted to consumers of legal services. A client or potential client of a lawyer who is the recipient of the proposed e-mail will have the benefit of that lawyer's counsel regarding information about the inquiring attorney's legal services. While the restrictions that apply to advertisements (Rule 7.2) and solicitations (Rule 7.3) do not apply to the proposed e-mails, the inquiring attorney's law firm must comply with Rule 7.4 on specialization, and with Rule 7.1 which prohibits false or misleading communications about lawyers and their services.

The inquiring attorney has asked about the proposed e-mails as they relate to the Can-Spam Act of 2003, which is a federal statute that applies to unsolicited bulk commercial e-mails. The Panel's jurisdiction is limited to interpreting the Rules of Professional Conduct. Therefore the Panel will not consider the applicability of Can-Spam or other law to these facts.

The Panel concludes that sending e-mails to members of the Rhode Island Bar for the purpose of seeking referrals of clients is permitted under the Rules of Professional Conduct. The proposed lawyer-to-lawyer e-mails are neither solicitations under Rule 7.3, nor advertisements under Rule 7.2. The law firm must comply with Rules 7.1 and 7.4.