Can I mail people who are owed unclaimed money or property a letter with a contingency fee agreement offering to recover it for them?

Plain-English summary

Attorney A was contacted by an out-of-state attorney, Attorney B, with a business proposition. Attorney B would provide a list of names and addresses of people entitled to monies and/or property from a particular state. Attorney A would send letters informing them that a client of A's (Attorney B) had discovered monies or property they may be entitled to, enclosing a contingency fee agreement under which B would receive a one-third share of any recovery. Recipients were instructed to sign the agreement and mail it to Attorney A, who would then contact them with specific information; Attorney A would be compensated a minimal fee for this service. Attorney A asked whether such conduct is ethically appropriate.

The panel said it appears the letter is or may be construed by recipients as a direct solicitation of legal services, noting that attorneys are subject to discipline for improper conduct in business, personal, and official activities (citing ABA Formal Opinion 336) and are bound by the rules whether or not acting in a professional capacity (citing R.I. Ethics Advisory Opinion 90-22). The panel said Rule 7.3 ("Direct Contact with Prospective Clients") addresses the inquiry: 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 "solicit" includes communication directed to a specific recipient.

The panel explained that Rule 7.3(b)(1) ("Written Communication") applies when mailing letters directly to prospective clients with no family or prior professional relationship: such communications must 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 a copy of each must be sent to the Supreme Court Disciplinary Counsel and retained by the lawyer for three years. Citing the potential for undue influence, intimidation, and overreaching inherent in direct solicitation (per the comments to Rule 7.3), the panel concluded the attorney must comply with Rules 7.3(b) and 7.4.

In practice

Under this opinion, an attorney who mails contingency-fee solicitation letters to people identified as owed unclaimed money or property is engaged in direct solicitation of prospective clients under Rule 7.3, because those recipients have no family or prior professional relationship with the attorney and the attorney's motive is pecuniary gain. The opinion holds that the attorney must comply with Rule 7.3(b)'s written-communication requirements (the "advertisement" markings and filing a copy with Disciplinary Counsel) and with Rule 7.4.

Common questions

Q: Is mailing recovery letters to people owed unclaimed property a "solicitation"?

A: Per the opinion, yes; the panel said such a letter is or may be construed as a direct solicitation of legal services governed by Rule 7.3.

Q: What does Rule 7.3(b) require of these letters?

A: Per the opinion, the mailing must 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 a copy must be sent to the Supreme Court Disciplinary Counsel and kept by the lawyer for three years.

Q: Does it matter that the attorney's own fee is minimal?

A: Per the opinion, the panel still treated the mailing as solicitation for pecuniary gain and required compliance with Rules 7.3(b) and 7.4; it did not exempt the conduct because the attorney's fee was small.

Background and rules framework

The opinion applies Rhode Island Rules 7.3 (direct contact with prospective clients) and 7.4 (communication of fields of practice), corresponding to the same-numbered Model Rules. The panel read Rule 7.3(a)'s bar on pecuniary-motivated solicitation of non-family, non-prior-client prospects and Rule 7.3(b)(1)'s written-communication requirements as controlling, and drew on the comments to Rule 7.3 describing the potential for undue influence and overreaching in direct solicitation.

Citations and references

Rules of Professional Conduct:

• MR 7.3 (solicitation of clients / direct contact with prospective clients)
• MR 7.4 (communication of fields of practice and specialization)
• RI RPC 7.3(a), 7.3(b)(1), 7.4; comments to Rule 7.3

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• ABA Formal Opinion 336 (June 3, 1974): attorneys are subject to discipline for improper conduct in business, personal, and official activities.
• R.I. Ethics Advisory Opinion 90-22: an attorney is bound by the rules whether or not acting in a professional capacity.

See also

• RI EAP Op. 92-57: Soliciting Municipal Consulting Work Must Follow 7.3 and 7.4
• RI EAP Op. 92-55: Law-Related Seminars and Brochures Are Not Solicitation
• RI EAP Op. 91-24: Targeted Mail to Victim-Compensation Claimants Must Disclose Costs

Currency note

This opinion was issued in 1992 (Opinion 92-79, issued December 9, 1992), 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 renumbered and amended the lawyer-advertising and solicitation rules (Rules 7.1-7.4). 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%2092-79.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
Opinion 92-79, Request #307
Issued December 9, 1992

An attorney seeks Panel advice regarding the following circumstances. Attorney A was contacted by an out of state attorney, Attorney B, with a business proposition. Attorney B would provide a list of names and addresses of people who are entitled to monies and/or property from a particular state. Attorney A would send letters informing them that a client of A's (Attorney B) had discovered monies/property which they may be entitled to. Also enclosed in the letter would be a contingency fee agreement in which B would receive a one-third share of any monies/property recovered. They were instructed to sign the agreement, mail it to Attorney A and Attorney A would contact them with specific information. Attorney A would be compensated a minimal fee for this service. Attorney A asks whether such conduct is ethically appropriate.

It appears from the facts presented that the letter from Attorney A is or may be construed by the letter's recipients as a direct solicitation of legal services. 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, R.I. Ethics Advisory Opinion 90-22.

The Panel believes that Rule 7.3 entitled "Direct Contact with Prospective Clients" addresses 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 ....

Rule 7.3(b)(1) 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.

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.