Can I help organize and moderate a public civic panel on local housing as a private citizen, when many attendees could be potential clients of my elder-law firm, without violating the solicitation rules?

Plain-English summary

The inquiring attorney works for a firm concentrating in elder law, estate planning, and guardianships, so the firm's clientele tends toward senior citizens and persons with special needs. Personally interested in local housing issues, the attorney wished to help organize and moderate a civic panel of stakeholders (a former town councilwoman, a Realtors' association member, senior-advocacy and special-needs representatives, and a land-trust official) addressing the need for additional senior housing. The attorney would act as an interested private citizen, not as an attorney seeking pecuniary gain, and would not introduce himself or herself as an attorney, market the firm's services, provide legal advice, or attempt to solicit clients from the panelists or attendees.

The panel concluded that the attorney may organize and moderate the panel without violating the Rules of Professional Conduct. It framed the question under Rule 7.3, which governs direct contact with prospective clients. Because the firm's client base (seniors and persons with special needs) overlaps with the panel's likely audience, the panel found a substantial likelihood that the attorney would come into direct contact with potential clients, the type of situation Rule 7.3(a) generally seeks to prohibit given the potential for undue influence, intimidation, and overreaching described in Comment [1].

The panel held that two interrelated facts undercut that risk. First, the attorney would act solely as a private citizen, not as an attorney seeking pecuniary gain, which removes a key prerequisite for Rule 7.3(a) (citing Comment [4], noting far less likelihood of abusive practices when a lawyer is motivated by considerations other than pecuniary gain). Second, the attorney would not introduce himself or herself as an attorney, market the firm, give legal advice, or solicit clients; the panel noted, citing Opinion 92-55, that contact otherwise prohibited under Rule 7.3(a) may be permissible in the absence of affirmatively solicitous conduct. Taken together, these facts ameliorate the risk Rule 7.3(a) seeks to avoid, so the attorney's participation is permissible.

In practice

Under this opinion, a lawyer whose practice area overlaps with a public event's likely audience may organize and moderate that event when acting purely as a private citizen without a pecuniary motive and without identifying as an attorney, marketing the firm, giving legal advice, or soliciting clients. The panel treated the absence of a pecuniary motive and the absence of affirmatively solicitous conduct as the two facts that, together, remove the Rule 7.3(a) concern the overlap otherwise raised.

Common questions

Q: Does moderating a public panel where potential clients may attend count as prohibited solicitation?

A: Not on these facts. The panel found a substantial likelihood of direct contact with potential clients, but held Rule 7.3(a)'s concern was removed because the attorney had no pecuniary motive and would not engage in solicitous conduct.

Q: What made the difference under Rule 7.3?

A: Two interrelated facts: acting as an interested private citizen rather than an attorney seeking pecuniary gain (Comment [4]), and not introducing himself or herself as an attorney, marketing the firm, providing legal advice, or soliciting clients.

Q: Can a lawyer give a public seminar to non-clients?

A: The panel relied on Opinion 92-55, which permitted an attorney to provide legal seminars to clients and non-clients so long as neither the seminar brochures nor the presentation recommends that the firm be employed for legal representation.

Background and rules framework

The opinion applies Rule 7.3 of the Rhode Island Rules of Professional Conduct (Model Rule 7.3), which restricts in-person, live-telephone, or real-time electronic contact to solicit professional employment from a prospective client when a significant motive is the lawyer's pecuniary gain. The analysis turns on Rule 7.3(a) and its Comments [1] (the potential for abuse in direct contact) and [4] (reduced concern when the lawyer is not motivated by pecuniary gain).

Citations and references

Rules of Professional Conduct:

• MR 7.3 (solicitation of clients)
• RI RPC 7.3(a)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• RI EAP Op. 92-55 (legal seminars to clients and non-clients permitted so long as neither the brochures nor the presentation recommends that the firm be employed)

See also

• RI EAP Op. 92-55: Legal Seminars to Clients and Non-Clients
• RI EAP Op. 89-17: Announcement to Fellow Attorneys About a Neutral Practice
• RI EAP Op. 88-14: Direct Contact With Unrepresented Bankruptcy Claimants

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-2024-01.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. 2024-01
Issued February 8, 2024

FACTS

The inquiring attorney works for a law firm concentrating in the areas of elder law, estate planning, and guardianships. Consequently, the firm's clientele tends toward senior citizens and persons with special needs.

The inquiring attorney reports that he or she is personally interested in local housing issues. At a recent community service event, the inquiring attorney and the director of the local land trust discussed organizing a civic panel of interested stakeholders and professionals to address the need for additional housing for senior citizens and other groups in the inquiring attorney's hometown, against competing interests such as conserving open space and preserving home values. Panelists would include a former town councilwoman, a member of the Rhode Island Association of Realtors, the director of Village Common Rhode Island (a senior citizen advocacy group), a representative from a special needs advocacy group, and the head of the Rhode Island Land Trust Council.

The inquiring attorney wishes to help organize and/or moderate the proposed panel in his or her role as an interested private citizen, not as an attorney seeking pecuniary gain. Accordingly, the inquiring attorney states that he or she would not introduce him or herself as an attorney, market his or her law firm's services, provide legal advice, or attempt to solicit clients from the among panelists or attendees.

ISSUE PRESENTED

The inquiring attorney asks whether he or she may help organize and/or moderate the proposed panel without violating the Rules of Professional Conduct?

OPINION

It is the Panel's opinion that the inquiring attorney may help organize and moderate the proposed panel without violating the Rules of Professional Conduct.

REASONING

Issues pertaining to direct contact with prospective clients are governed by Rule 7.3:

(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.

(b) A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if:

(1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer;

(2) the solicitation involves coercion, duress or harassment;

(3) the communication contains a false, fraudulent, misleading or deceptive statement or claim or is improper under Rule 7.1;

(4) the lawyer knows or reasonably should know that the physical, emotional, or mental state of the person makes it unlikely that the person would exercise reasonable judgment in employing a lawyer; or

(5) the communication concerns a specific matter and the lawyer knows or reasonably should know that the person to whom the communication is directed is represented by a lawyer in the matter.

(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 to whom the communication was sent to the Supreme Court Disciplinary Counsel as well as retaining the same information.

(e) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.

In this case, the inquiring attorney works for a law firm concentrating in the areas of elder law, estate planning, and guardianships, such that its clientele tends to encompass senior citizens and persons with special needs. The proposed panel would address local housing issues pertaining to these same groups, such that they are likely to comprise a significant portion of the proposed panel's audience. Therefore, there exists a substantial likelihood that the inquiring attorney will come into direct contact at the proposed panel with individuals who may be potential clients. This situation is of the type Rule 7.3(a) generally seeks to prohibit. See Comment [1] to Rule 7.3 (explaining that "[t]here is a potential for abuse inherent in direct in-person . . . contact by a lawyer with a prospective client known to need legal services . . . The situation is fraught with the possibility of undue influence, intimidation, and over-reaching").

However, the risks of abuse normally inherent in direct in-person contact with potential clients are undercut by two (2) interrelated facts here. First, the inquiring attorney has indicated that he or she would organize and moderate the proposed panel solely in his or her capacity as an interested private citizen, not as an attorney seeking pecuniary gain—thereby removing one of the key prerequisites for Rule 7.3(a)'s applicability. See Comment [4] to Rule 7.3 (clarifying that "[t]here is far less likelihood that a lawyer would engage in abusive practices against an individual . . . in situations in which the lawyer is motivated by considerations other than the lawyer's pecuniary gain," such that "the general prohibition in Rule 7.3(a) . . . [is] not applicable in those situations").

Second, in this vein the inquiring attorney asserts that he or she would not introduce him or herself as an attorney, market his or her law firm's services, provide legal advice, or attempt to solicit clients from the among panelists or attendees. As the Panel has noted in previous opinions, direct contact between attorneys and potential clients otherwise prohibited under Rule 7.3(a) may be permissible in the absence of affirmatively solicitous conduct. See, e.g., Rhode Island Ethics Advisory Panel Opinion 92-55 (permitting the inquiring attorney to "provide legal seminars to clients and non-clients so long as neither the seminar brochures nor the presentation itself contains a recommendation that the firm be employed for legal representation").

The Panel finds that these two (2) facts, taken together, ameliorate the risks of direct in-person contact that Rule 7.3(a) seeks to avoid. Therefore, the inquiring attorney helping to organize and moderate the proposed panel is permissible.