I want to offer zoning-consulting services to a town and others after seeing a newspaper notice. Do the solicitation and advertising rules apply to me?

Plain-English summary

The inquiring attorney read in a newspaper that a municipality contemplated hiring a zoning consultant. Familiar with the subject matter, the attorney decided to offer consultation services to the municipality and others as well, and inquired whether the consulting services constitute the practice of law and therefore require the attorney to conform with the Rules of Professional Conduct, specifically Rule 7.3.

The panel said Rule 7.3 ("Direct Contact with Prospective Clients") addresses the inquiry. Rule 7.3(a) provides 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 "solicit" includes contact directed to a specific recipient. The panel quoted the comments' concern about the potential abuse inherent in direct solicitation of prospective clients known to need legal services, which subjects the layperson to the private importuning of a trained advocate. The panel stated that the attorney must comply with Rules 7.3(b) and 7.4. Rule 7.3(b) ("Written Communication") applies when mailing letters directly to prospective clients with whom the attorney has no family or prior professional relationship, and requires that such communications be plainly marked "advertisement" on the envelope and at the top of each page in type one size larger than the largest type used, and that a copy be sent to the Supreme Court Disciplinary Counsel and retained by the lawyer for three years. Rule 7.4 ("Communication of Fields of Practice") provides that an attorney may not state that his or her practice is limited to a particular field unless the attorney also indicates that Rhode Island does not have a procedure for certification or recognition of specialization by lawyers.

The panel concluded that an attorney must at all times comply with all applicable rules whether or not the attorney is acting in a professional capacity, noting that attorneys are subject to discipline for improper conduct in business, personal, and governmental activities (citing ABA Formal Opinion 336 (6/3/74)) and that a lawyer is bound by the applicable rules whether or not acting in a professional capacity (citing Ethics Advisory Opinion 90-22).

In practice

Under this opinion, a lawyer who solicits consulting engagements from a municipality and others is subject to the solicitation and advertising rules. The opinion applies Rule 7.3, including the written-communication labeling, filing, and retention requirements of Rule 7.3(b), and Rule 7.4's fields-of-practice disclaimer, and reiterates that a lawyer's obligations under the Rules of Professional Conduct persist whether or not the lawyer is acting in a professional capacity.

Common questions

Q: Do the solicitation rules apply when I pitch consulting services rather than legal representation?

A: Per the opinion, the attorney must comply with the Rules of Professional Conduct, and the panel applied Rule 7.3 (direct contact with prospective clients) and Rule 7.4 to the inquiry.

Q: What do I have to do if I mail solicitation letters to prospective clients?

A: Per the opinion, under Rule 7.3(b) the written communications must be plainly marked "advertisement" on the envelope and the top of each page in larger type, and a copy must be sent to the Supreme Court Disciplinary Counsel and retained for three years.

Q: Am I bound by these rules even when not acting as a lawyer?

A: Per the opinion, yes; an attorney must at all times comply with all applicable rules whether or not the attorney is acting in a professional capacity.

Background and rules framework

The opinion applies Rhode Island Rule 7.3 (direct contact with prospective clients) and Rule 7.4 (communication of fields of practice), corresponding to Model Rules 7.3 and 7.4. The panel read Rule 7.3(a) as prohibiting pecuniary-motivated solicitation of prospective clients lacking a family or prior professional relationship, Rule 7.3(b) as imposing labeling, filing, and retention requirements on direct-mail solicitations, and Rule 7.4 as requiring the certification/specialization disclaimer.

Citations and references

Rules of Professional Conduct:

• MR 7.3 (solicitation of clients), MR 7.4 (communication of fields of practice)
• RI RPC 7.3(a), 7.3(b), 7.4; comments to Rule 7.3

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• ABA Formal Opinion 336 (6/3/74): attorneys are subject to discipline for improper conduct in business, personal, and governmental activities.
• RI EAP Opinion 90-22: a lawyer is bound by the applicable rules whether or not acting in a professional capacity.

See also

• RI EAP Op. 92-55: Law-Related Seminars and Solicitation
• RI EAP Op. 92-53: A Legislative-Alert Letter to Non-Clients

Currency note

This opinion was issued in 1992 (Opinion 92-57), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 7.3 and 7.4 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, which amended the solicitation and fields-of-practice rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

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%2092-57.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
Opinion #92-57, Request #280
Issued July 23, 1992

An attorney seeks Panel advice regarding the ethical propriety of offering consulting services to a municipality. The attorney read in a newspaper that a municipality contemplated hiring a zoning consultant. The attorney, who is familiar with the subject matter, decided to offer consultation services to the municipality and others as well. The attorney inquires as to whether the consulting services constitute the practice of law and therefore require the attorney to conform with the Rules of Professional Conduct, specifically Rule 7.3.

The Panel believes that Rule 7.3 entitled "Direct Contact with Prospective Clients" address this inquiry. The Rule states that:

(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 ...

There is a potential abuse inherent in direct solicitation by a lawyer of prospective clients known to need legal services. It subjects the layperson to the private importuning of a trained advocate, in a direct interpersonal encounter. The situation is fraught with the possibility of undue influence, intimidation, and overreaching. (See, Comments to Rule 7.3). The Panel believes that the attorney must comply with Rules 7.3(b) and 7.4. Rule 7.3(b), entitled "Written Communication" is applicable when mailing letters directly to prospective clients with whom the attorney has no family or prior professional relationship. The rule states that:

(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.

Equally applicable to this inquiry is Rule 7.4 entitled "Communication of Fields of Practice." The Rule states that an attorney may not state to the public that his or her practice is limited to a particular field of law unless the attorney also indicates "that Rhode Island does not have a procedure for certification or recognition of specialization by lawyers."

The attorney asks whether the attorney's conduct must comply with the Rules of Professional Conduct. The Panel believes that an attorney must at all times comply with all applicable rules whether or not he/she is acting in a professional capacity. It is generally recognized that attorneys are subject to discipline for improper conduct in connection with business activities, personal activities and activities as a judicial, governmental or public official. See, ABA Formal Opinion 336 (6/3/74). It is well settled that an attorney is bound by applicable rules of professional conduct whether or not he or she is acting in a professional capacity. See, Ethics Advisory Opinion 90-22.