Is an unsolicited brochure mailed to prospective clients a solicitation under Rule 7.3, and does a shared trade-organization membership count as a prior professional relationship?

Plain-English summary

An attorney asked three questions about Rule 7.3 of the Rhode Island Rules of Professional Conduct. First, whether an unsolicited mailing of a brochure describing a law firm's services to prospective clients constitutes solicitation of professional employment under Rule 7.3(a). The opinion concludes that the mailing falls within Rule 7.3, "Direct Contact with Prospective Clients," is solicitation under the rule, and therefore the attorney must comply with the criteria set forth in Rule 7.3(b).

Second, whether a common membership between a law firm and a prospective client in a professional business organization constitutes a "prior professional relationship" under Rule 7.3(a). The opinion concludes that such a membership does not constitute a prior professional relationship envisioned under Rule 7.3, so if the attorney sends a mailing to the members of the organization it must be marked "advertisement" in accordance with Rule 7.3(b).

Third, whether Rule 7.3(b)(1) applies to communications, such as brochures, sent in response to a request by a prospective client. The opinion concludes that the requirements of Rule 7.3(b)(1) do not apply where there is an unsolicited request by a prospective client for firm communications or literature.

In practice

Under this opinion, the trigger for Rule 7.3(b)'s requirements is whether the communication is lawyer-initiated. An unsolicited brochure mailing is solicitation and must satisfy Rule 7.3(b), including being marked "advertisement"; a shared trade-organization membership does not exempt the mailing as a prior professional relationship. By contrast, material a firm sends because a prospective client asked for it falls outside Rule 7.3(b)(1)'s requirements.

Common questions

Q: Is mailing an unsolicited brochure to prospective clients considered solicitation?

A: Yes. The opinion concludes the mailing is solicitation under Rule 7.3 and must comply with the criteria in Rule 7.3(b).

Q: Does belonging to the same business organization as the recipient count as a prior professional relationship?

A: No. The opinion concludes such a common membership is not a prior professional relationship under Rule 7.3, so the mailing must be marked "advertisement."

Q: Do the Rule 7.3(b)(1) requirements apply to a brochure the client asked for?

A: No. The opinion concludes those requirements do not apply where there is an unsolicited request by a prospective client for the firm's communications or literature.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 7.3, "Direct Contact with Prospective Clients," the analog of Model Rule 7.3. Rule 7.3(a) addresses what constitutes solicitation and the "prior professional relationship" concept; Rule 7.3(b) sets the criteria for permitted written solicitation, including the requirement that certain mailings be marked "advertisement"; and Rule 7.3(b)(1) imposes requirements the opinion reads as inapplicable to client-requested materials.

Citations and references

Rules of Professional Conduct:

• MR 7.3 / RI RPC 7.3(a), 7.3(b), 7.3(b)(1) (direct contact with prospective clients; solicitation criteria; advertisement marking)

See also

• RI EAP Opinion 88-22: direct-mail solicitation of accident victims (pre-Shapero)
• RI EAP Opinion 2019-01: may solicit local business owners in person under the Rule 7.3 exception

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%2093-30.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ETHICS ADVISORY PANEL
Opinion #93-30, Request #363
Issued May 12, 1993

An attorney inquires regarding Rule 7.3 of the Rhode Island Rules of Professional Conduct. The attorney asks whether an unsolicited mailing of a brochure to prospective clients which describes a law firm's services constitutes solicitation of professional employment pursuant to Rule 7.3(a).

The Panel believes that the aforementioned mailing falls within the purview of Rule 7.3 entitled "Direct Contact with Prospective Clients." The mailing is "solicitation" under this rule, therefore, the attorney must comply with the criteria set forth in Rule 7.3(b).

The attorney also asks whether a common membership, between a law firm and a prospective client, in a professional business organization, constitute a "prior professional relationship" under Rule 7.3(a). The Panel opines that such a membership does not constitute a "prior professional relationship" envisioned under Rule 7.3. If the attorney intends to send a mailing to the members of this organization it must be marked advertisement in accordance with Rule 7.3(b).

Lastly, the attorney asks whether Rule 7.3(b)(1) applies to communications, such as brochures, sent in response to a request by a prospective client. The Panel believes that the requirements set forth in Rule 7.3(b)(1) do not apply in situations where there is an unsolicited request by a prospective client for firm communications or literature.