The Bar's Lawyer Referral Service sends me referrals but the clients often don't call. Can I phone or write to them first without following the rules for solicitation letters?

Plain-English summary

The inquiring attorney received referrals from the Rhode Island Bar Association Lawyer Referral Service, which sent him a notice with the referred person's name, address, and the nature of the case. He reported that referred persons often did not contact him in a timely fashion and, when they eventually did, said they had been waiting for him to call them. To handle referrals more efficiently, he proposed to contact referred persons by telephone or letter and submitted a proposed letter. He asked whether a telephone contact would violate Rule 7.3, and whether a letter that did not conform to Rule 7.3(b) would violate the rule. The panel first reiterated that it would not edit or approve the proposed letter as a document.

The panel concluded that neither contact was a prohibited solicitation. Under the circumstances, a call or letter to a person referred through the Lawyer Referral Service is not a solicitation because the prospective client initiated the contact for legal services through the service. A trained interviewer or lawyer at the service had interviewed the prospective client and referred him to a panel lawyer, and the intake form (given to both) directs the prospective client to call the named attorney, though clients often fail to do so.

The panel concluded that a follow-up call or letter to such a referred prospective client is not a prohibited solicitation under Rule 7.3, because the service's established policies and procedures adequately eliminate the potential for abuse and overreaching inherent in direct solicitation, and the service's purpose is to make legal services readily available to the public. Accordingly, the attorney could contact a referred prospective client by telephone, and by a letter that need not conform to Rule 7.3(b).

Currency note

This opinion was issued in December 1998, 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, and the state's solicitation rule and its "advertisement"-marking and filing requirements may no longer read as they did here. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Is calling a client the Bar's referral service sent me a prohibited solicitation?

A: No. The opinion concluded that a follow-up telephone call to a person referred through the Bar Association Lawyer Referral Service is not a solicitation under Rule 7.3, because the prospective client initiated the contact through the service.

Q: Does a follow-up letter to a referred client have to be marked "advertisement" and filed with disciplinary counsel?

A: No. The opinion concluded the letter need not conform to Rule 7.3(b), so the advertisement-marking and filing requirements of that paragraph did not apply to it.

Q: Why is a referral-service contact treated differently from cold solicitation?

A: The opinion reasoned that the service's established procedures (an intake interview and referral) adequately eliminate the potential for abuse and overreaching inherent in direct solicitation, and that the service exists to make legal services available to the public.

Background and rules framework

The opinion applied Rhode Island Rule of Professional Conduct 7.3 (Model Rule 7.3) as originally adopted. Rule 7.3(a) barred soliciting professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive is the lawyer's pecuniary gain, and defined "solicit" to include communications directed to a specific recipient that do not meet paragraph (b). Rule 7.3(b) required written communications to unfamiliar prospective clients to be plainly marked "advertisement" and to be copied to Supreme Court Disciplinary Counsel and retained for three years. The panel concluded that a referral-service contact fell outside the definition of a prohibited solicitation.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.3 / RI RPC 7.3(a), 7.3(b) (direct contact with prospective clients; solicitation)

Other opinions cited:

• RI EAP Op. 96-28 (1996) and Op. 90-15 (1990) (panel will not edit or approve documents): cited on the panel's practice

See also

• RI EAP Op. 98-15: Mass mailing to prepaid-plan members must comply with Rule 7.3(b)
• RI EAP Op. 99-11: Contributing to a fund for a court clerk

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%2098-16.pdf

Original opinion text

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

Final

Rhode Island Supreme Court
Ethics Advisory Panel
Opinion No. 98-16 Request No. 761
Issued December 9, 1998

Facts:

The inquiring attorney receives referrals from the Rhode Island Bar Association Lawyer Referral Service. The Service sends a notice to the attorney, advising him/her of the name and address of the person to whom the referral was made as well as the nature of the case. The inquiring attorney states that he/she often does not hear from persons referred to him/her in a timely fashion. He/she further states that when persons so referred eventually contact the inquiring attorney, they tell him/her that they were waiting for the attorney to contact them. To more efficiently handle the referrals, the inquiring attorney proposes to contact by telephone or by letter the persons who have been referred to him/her. The attorney has submitted a proposed letter for the Panel's review.

Issue Presented:

(1) Is telephone contact with persons who have been referred to the inquiring attorney by the Bar Association Lawyer Referral Service a violation of Rule 7.3?
(2) Would a letter to a person so referred which does not conform to the requirements of Rule 7.3(b) be a violation of the Rule?

Opinion:

(1) No. Telephone contact of persons referred to the inquiring attorney by the Bar Association Lawyer Referral Service is not a violation of Rule 7.3(a).
(2) No. A letter from the inquiring attorney sent to persons who are referred to him/her by the Lawyer Referral Service need not conform to the requirements of Rule 7.3(b).

Reasoning:

At the outset, the Panel reiterates that it will not embark on the task of editing documents, and will not therefore give approval to a document as a whole by way of an advisory opinion. See R.I. Sup. Ct. Ethics Advisory Panel Op. 96-28 (1996) and Op. 90-15 (1990).

Rule 7.3 provides in pertinent part:

Rule 7.3. Direct Contact with Prospective Clients. - (a) A lawyer may not solicit professional employment from a prospective client Final 98-16 Page 2

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 not meeting the requirements of paragraph (b) of this rule.

(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 Disciplinary Counsel as well as retaining the same information.

Under these circumstances, a telephone call or a letter from an attorney to a person who has been referred to the attorney pursuant to the Bar Association's Lawyer Referral Service is not a solicitation. The prospective client has initiated the contact for legal services through the Lawyer Referral Service. The inquiring attorney is a registered member of a qualified lawyer Final 98-16 Page 3

referral service sponsored by the Bar Association. Pursuant to the established procedures of the Referral Service, a trained interviewer or lawyer at the Referral Service has interviewed the prospective client and has referred him or her to a lawyer on its panel. The Referral Service provides the prospective client and the attorney each with a copy of an in-take form which typically contains the prospective client's and the attorney's names, addresses, and phone numbers. Although the in-take form expressly directs the prospective client to call the named attorney to arrange a consultation, the inquiring attorney has represented that clients often fail to call in a timely manner.

The Panel believes that an attorney's follow-up phone call or letter to a prospective client referred to him/her through the Bar Association's Lawyers Referral Service is not a prohibited solicitation under Rule 7.3. The Panel is of the opinion that the established policies and procedures of the Bar Association's Lawyer Referral Service adequately serve to eliminate the potential for abuse and overreaching inherent in direct solicitation. In addition to these procedural safeguards, an overriding consideration in this inquiry is the fact that the purpose of the Bar Association's Lawyer Referral Service is to make legal services readily available to the public.

Accordingly the inquiring attorney is permitted to contact by telephone a prospective client who has been referred to him/her through the Bar Association Lawyer Referral Service. Similarly, the inquiring attorney is permitted to contact the prospective client by a letter which need not conform to the requirements of Rule 7.3(b).