I asked for reconsideration of the panel's opinion that my accident-victim solicitation letters violated the old Code. Rhode Island has since adopted the Model Rules of Professional Conduct. Does that change the answer?

Plain-English summary

An attorney asked the panel to reconsider Advisory Opinion 88-22, issued to him on September 22, 1988. In that opinion, the panel had advised him that his sample solicitation letters constituted a form of targeted solicitation prohibited by DR 2-103(A) of the Code of Professional Responsibility, and had taken the position that although the U.S. Supreme Court's holding in Shapero v. Kentucky Bar Association appeared to conflict with DR 2-103(A), the panel was only empowered to apply the Code as adopted by the Rhode Island Supreme Court.

By the time of this reconsideration, the Rhode Island Supreme Court had adopted the Model Rules of Professional Conduct, effective November 15, 1988, which the panel found rendered moot any question of the scope or constitutionality of DR 2-103(A). Applying new Rule 7.3, the panel explained that a lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive is the lawyer's pecuniary gain, and that written communications not meeting Rule 7.3(b)'s requirements count as solicitation. Rule 7.3(b)(1) requires such written communications to be plainly marked "advertisement" on the envelope and at the top of each page, and requires a copy to be sent to the Supreme Court Disciplinary Counsel (with the lawyer retaining a copy for three years). Rule 7.3(b)(2)(e) separately bars sending a written communication where the lawyer knows or reasonably should know that the recipient's physical, emotional, or mental state makes it unlikely the person would exercise reasonable judgment in employing a lawyer.

Applying these provisions to the same sample letters at issue in Opinion 88-22, the panel held that the letters did not meet Rule 7.3(b)(1)'s requirements and violated the prohibition in Rule 7.3(b)(2)(e).

Currency note

This opinion was issued in January 1989, shortly after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 7.3 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process. This opinion's citations to Rule 7.3's specific paragraph structure and requirements may not reflect the current text of that rule. Treat this page as historical context, not current guidance. Verify against the current Rule 7.3 before relying on any specific requirement mentioned here.

Common questions

Q: The panel already told me my accident-victim letters violated the old Code. Does the switch to the Model Rules change that?

A: No. The opinion holds the same letters independently fail new Rule 7.3(b)(1)'s advertisement-labeling and Disciplinary Counsel copy requirements, and violate Rule 7.3(b)(2)(e)'s bar on soliciting someone whose state makes reasonable judgment unlikely.

Q: Does Rhode Island's adoption of the Model Rules resolve the Shapero conflict the panel mentioned in the earlier opinion?

A: Yes, according to this opinion. The panel found that adopting the Model Rules of Professional Conduct, effective November 15, 1988, rendered moot any question of DR 2-103(A)'s scope or constitutionality relative to Shapero.

Background and rules framework

The opinion applies Rule 7.3 of the Rhode Island Rules of Professional Conduct, as originally adopted effective November 15, 1988 (the Model Rules analog to the former DR 2-103(A)), including its written-communication labeling and disclosure requirements under 7.3(b)(1) and its bar on soliciting vulnerable recipients under 7.3(b)(2)(e).

Citations and references

Rules of Professional Conduct:

• MR 7.3 (solicitation of professional employment)
• RI RPC 7.3(a) (bar on soliciting a prospective client for pecuniary gain absent a family or prior professional relationship)
• RI RPC 7.3(b)(1) (advertisement-labeling and Disciplinary Counsel copy requirements for written solicitation)
• RI RPC 7.3(b)(2)(e) (bar on soliciting a person whose state makes reasonable judgment unlikely)

Statutes:

• None cited.

Cases:

• Shapero v. Kentucky Bar Association (U.S. 1988), referenced as the decision whose conflict with DR 2-103(A) the Model Rules' adoption rendered moot

Other opinions cited:

• RI EAP Opinion 88-22 (September 22, 1988): the opinion under reconsideration here

See also

• RI EAP Opinion 88-22: Direct-Mail Letters to Accident Victims Under the Code of Professional Responsibility, Before Rhode Island Adopted Shapero: the original opinion this one reconsiders, analyzed under the superseded DR 2-103(A).
• RI EAP Opinion 88-27: Mailing a Firm Newsletter to Non-Clients Under the Code of Professional Responsibility, Before Rhode Island Adopted Shapero

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%2088-29.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 #88-29, Request #38
Issued January 12, 1989

An attorney requests Panel reconsideration of Advisory Opinion 88-22 issued to him September 22, 1988. In Advisory Opinion 88-22 the Panel advised the attorney that the sample letters he submitted constituted a form of targeted solicitation prohibited by DR 2-103(A) of the Code of Professional Responsibility. The Panel also took the position that although the United States Supreme Court's holding in Shapero v. Kentucky Bar Association appeared to conflict with DR 2-103(A), the Panel was only empowered to apply the Code as adopted by the Rhode Island Supreme Court.

The Rhode Island Supreme Court adopted the Model Rules of Professional Conduct, effective November 15, 1988, rendering moot any question of the scope or constitutionality of DR 2-103(A). Rule 7.3 of the Rules of Professional Conduct provides:

(a) A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. The term "solicit" includes contact in person, by telephone or telegraph, or by other communication directed to a specific recipient and includes any written form of communication directed to a specific recipient and not meeting the requirements of paragraph (b) of this rule.

Paragraph (b) first sets forth two specific requirements for written communications:

(b) Written Communication.

(1) Written communication to prospective clients with whom the lawyer has no family or prior professional relationship are subject to the following requirements:

(a) Such written communications shall be plainly marked "advertisement" on the face of the envelope and at the top of each page of the written communication in type one size larger than the largest type used in the written communication.

(b) A copy of each such written communication shall be sent to the Supreme Court Disciplinary Counsel and another copy shall be retained by the lawyer for three (3) years. If written 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 persons to whom the written communication was sent to the Supreme Court

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Disciplinary Counsel as well as retaining the same information.

Second, Paragraph (b) sets forth the five situations in which a lawyer may not send a written communication to a prospective client. Paragraph 7.3(b)(2)(e) provides:

(e) 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.

The Panel takes the position that the sample letters the attorney submitted for Panel review do not meet the requirements of Rule 7.3(b)(1) and violate the clear prohibition of Rule 7.3(b)(2)(e).

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.