Can I write or call unrepresented people who've already filed claims against a company in bankruptcy, to try to get them as clients?

Plain-English summary

An attorney asked the panel whether it was permissible for him to make contact in writing or by telephone with unrepresented individuals who had already filed claims against a corporation that had filed a petition for protection from creditors in bankruptcy court.

The panel quoted DR 2-103(A), which bars a lawyer from recommending employment of himself, his partner, or associate to a layperson who has not sought the lawyer's advice regarding employment of a lawyer, except as authorized under DR 2-101(B). DR 2-101(B) lists twenty-five informational items a lawyer may publish or broadcast. The panel found that the situation the attorney described did not fall within the ambit of these exceptions, and concluded that the proposed direct contact would constitute a violation of DR 2-103(A).

Currency note

This opinion was issued in 1988, before the Rhode Island Supreme Court's adoption of the 2007 revisions to the Rules of Professional Conduct, and it applies the ABA Model Code of Professional Responsibility's Disciplinary Rules then in effect. The opinion's own published digest carries this note: it "was rendered prior to the United States Supreme Court case of Shapero v. Kentucky Bar Association, No. 87-16, decided June 13, 1988." Subsequent rule amendments or later court decisions, including Shapero, may have changed the analysis of targeted direct-mail attorney solicitation. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can I send letters or make calls to people who have already filed claims in a bankruptcy case, offering to represent them?

A: At the time of this 1988 opinion, no. The panel held that this direct contact with unrepresented claimants would violate DR 2-103(A) because it did not fit any exception listed in DR 2-101(B).

Q: Does this opinion account for later First Amendment developments in attorney solicitation law?

A: No. The opinion's own digest notes it was decided before Shapero v. Kentucky Bar Association, a U.S. Supreme Court case decided about a month later, on June 13, 1988, that addressed targeted direct-mail solicitation.

Background and rules framework

The opinion applies DR 2-103(A) of the ABA Model Code of Professional Responsibility, then in force in Rhode Island, which barred a lawyer from recommending his own employment to an unrepresented layperson who had not sought that advice, subject to the informational-publication exceptions listed in DR 2-101(B).

Citations and references

Rules of Professional Conduct:

• RI DR 2-103(A) (recommending one's own employment to an unrepresented layperson)
• RI DR 2-101(B) (informational items a lawyer may publish or broadcast)

Statutes:

• None cited.

Cases:

• Shapero v. Kentucky Bar Association, No. 87-16 (U.S., decided June 13, 1988), noted in the opinion's digest as postdating this opinion

Other opinions cited:

• None cited.

See also

No sibling opinions yet indexed.

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%2088-14.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

DIGEST OF ETHICS ADVISORY PANEL
OPINION #88-14, REQUEST #28
Issued May 13, 1988

(Note: Ethics Advisory Panel Opinion #88-14, was rendered prior to the United States Supreme Court case of Shapero v. Kentucky Bar Association No. 87-16, Decided June 13, 1988)

An attorney seeks Panel advice as to whether it is permissible for him to make contact in writing or by telephone with unrepresented individuals who have already filed claims against a corporation which has filed a petition for protection from creditors in bankruptcy court.

Disciplinary Rule 2-103(A) provides that "[a] lawyer shall not, except as authorized in DR 2-101(B) recommend employment as a private practitioner of himself, his partner or associate to a lay person who has not sought his advice regarding employment of a lawyer." Disciplinary Rule 2-101(B) lists 25 informational items which a lawyer may publish or broadcast. The situation the attorney describes does not fall within the ambit of these exceptions. Thus, the direct contact proposed would constitute a violation of DR 2-103(A).

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.