Can a lawyer collect names of potential clients from seminar attendees and then contact those people to solicit business?

Plain-English summary

An estate-planning lawyer (Jane Doe) handed out a two-part "referral form" at general estate-planning seminars. One part asked attendees to list names of family members or friends who might be interested in the lawyer's services; the other asked permission to use the attendee's name as a reference. The lawyer pulled the form pending this opinion and asked whether it complied with Rule 7.3 (direct contact with prospective clients).

The committee separated two acts. Merely distributing the form at the seminar is not a violation of Rule 7.3, because the form does not solicit the attendee; it only asks for names of others. The problem arises with what the lawyer does next. Once an attendee writes down a name, that person is a "prospective client," and Rule 7.3(a) bars a lawyer from using in-person, telephone, or other real-time contact to solicit professional employment for the lawyer's pecuniary gain unless the person is a lawyer or has a family, personal, or prior professional relationship with the lawyer. The committee assumed the listed prospects do not fall within those exceptions.

The committee explained that written, recorded, or electronic (non-real-time) contact with those prospects is permissible unless one of the Rule 7.3(b) conditions applies, such as the prospect having said not to be solicited, coercion, or an uninvited contact that imposes an involuntary economic cost; mailed advertising materials are separately governed by Rule 7.2. It concluded that using the referral form to then make in-person, telephone, or real-time contact with the names provided violates Rule 7.3 and would be unethical.

In practice

Under this opinion, a North Dakota lawyer may gather names of potential clients at a seminar, but the manner of follow-up contact controls whether Rule 7.3 is violated. The committee applied Rule 7.3 as it stood at the time: in-person, telephone, or other real-time solicitation of those prospects is prohibited unless the prospect is a lawyer or has a family, personal, or prior professional relationship with the lawyer, while written or other non-real-time contact is permitted unless a Rule 7.3(b) condition applies.

Common questions

Q: Is it improper to hand out a form at a seminar asking attendees for names of people who might want my services?

A: No. The committee concluded that distributing the form is not itself a violation of Rule 7.3, because it does not solicit the attendees themselves; it only requests names of others who might be interested.

Q: Can I then call or visit the people whose names I collected?

A: Not for solicitation. The committee held that in-person, telephone, or other real-time contact to solicit those prospects violates Rule 7.3(a) unless the prospect is a lawyer or has a family, personal, or prior professional relationship with the lawyer.

Q: Can I contact those prospects by letter instead?

A: Generally yes. The opinion states that written, recorded, or electronic (non-real-time) contact is not a Rule 7.3 violation unless a Rule 7.3(b) condition applies, such as the prospect's request not to be solicited, coercion, or an uninvited contact imposing an involuntary cost; the opinion also directs the lawyer to Rule 7.2 for advertising materials.

Background and rules framework

The opinion interprets North Dakota Rule of Professional Conduct 7.3 (Model Rule 7.3), governing direct contact with prospective clients, and references Rule 7.2 (Model Rule 7.2) on advertising. The committee noted this was its first opinion interpreting Rule 7.3, applying the version that took effect in the bar's then-recent advertising-rule revisions. North Dakota later revised its Rules of Professional Conduct, so the rule text quoted in the opinion reflects the version in force at the time.

The opinion is issued under North Dakota Rule for Lawyer Discipline 1.2(B), the safe-harbor provision protecting good-faith reliance on a written ethics-committee opinion.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.3 / N.D.R. Prof. Conduct 7.3 (direct contact with prospective clients)
• Model Rule 7.2 / N.D.R. Prof. Conduct 7.2 (advertising of legal services)
• N.D.R. Lawyer Discipline 1.2(B) (safe harbor for reliance on a committee opinion)

See also

• ABA Formal Op. 501: Solicitation Under Rule 7.3
• ABA Formal Op. 07-445: Contacting Putative Class Members

Source

• Landing page: https://www.sband.org/page/ethics_opinions
• Original PDF: https://cdn.ymaws.com/www.sband.org/resource/resmgr/docs/for_lawyers/opinion_05-05.pdf

Original opinion text

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

STATE BAR ASSOCIATION OF NORTH DAKOTA
ETHICS COMMITTEE
OPINION NUMBER 05-05
September 1, 2005

Attorney Jane Doe requests an advisory opinion pursuant to the language of
Rule 7.3, N.D.R. Prof. Conduct, addressing the question of whether printed materials
she distributes at her general estate planning seminars complies with the language of
that rule.

Attorney Jane Doe has a law practice limited particularly to estate planning.
From time to time, the attorney would meet with groups of individuals in a seminar
setting to discuss general areas of estate planning topics that would be of interest to
that group. At these meetings, attorney Doe would hand out a referral form. In the
referral form attorney Doe would ask attendees of the seminar to list anyone they
thought might be interested in learning about the services of Jane Doe’s law firm. The
form handed to the attendee inquires as to whether the attendee has a name of an
individual which the attendee would be willing to refer to attorney Doe.

The requested opinion is not directed to revealing the existing client but rather
whether the method used by attorney Doe to possibly expand her client base is
consistent with, and appropriate ethical conduct pursuant to, the new language of Rule
7.3, N.D.R. Prof. Conduct. Although the forms submitted had previously been used in

a seminar context, the actual form itself was withdrawn by the attorney pending the

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opinion of this committee as to whether recently adopted Rules of Professional
Conduct addressing lawyer advertising prohibited use of the form the requesting
attorney distributed to persons who attend the seminars. In other words, it is the
understanding of the Committee that the form in question was not used after the
current version of N.D R. Pro. Con. 7.3 (2005) became effective on March 1, 2004.

APPLICABLE RULES

Rule 7.3 in its entirety addresses the issue of direct contact with prospective

clients. Most directly applicable are the provisions of subparts (a) and (b) of that rule.

RULE 7.3 - DIRECT CONTACT WITH PROSPECTIVE CLIENTS

(a) A lawyer, or the lawyer's representative, shall not by in-person or telephone contact,
or other real-time contact, solicit professional employment from a prospective client
when a significant motive for the solicitation is the lawyer's pecuniary gain unless the
person contacted:

(1) is a lawyer; or

(2) has a family, personal, or prior professional relationship with the lawyer.

(b) A lawyer shall not solicit professional employment from a prospective client by
written, recorded, or electronic communication or by in-person, telephone, or real-time
contact even when not otherwise prohibited by paragraph (a), if:

(1) the prospective client has made known to the lawyer a desire not to be
solicited by the lawyer;

(2) the solicitation involves coercion, duress, or harassment; or

(3) the receipt of the solicitation is uninvited and imposes any involuntary
economic cost on the prospective client to respond to the solicitation.

(c) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a
prepaid or group legal service plan operated by an organization not owned or directed by
the lawyer which uses in-person or telephone contact to solicit memberships or

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subscriptions for the plan from persons who are not known to need legal services in a
particular matter covered by the plan.

DISCUSSION

There appear to be no applicable ethical opinions issued by this Committee in
past years relative to this request. This also appears to be the first ethical opinion
which touches upon and interprets the language of Rule 7.3, N.D.R. Prof. Conduct.

The “referral form” is actually in two parts. The first part requests the recipient
io provide the attorney the names of family members, friends, [or presumably other
people] who the recipient believes may be interested in the legal services provided by
the lawyer. The second part of the “referral form” requests permission from the
attendee for the lawyer to use the attendees name as a “referral”, which appears to
mean that the lawyer may use the attendees name as a reference. This second part of
the “referral form” addresses using a client’s name.

With regard to the “referral form” requesting names of individuals who may be
interested in attorney Doe’s services, there are two actions undertaken theoretically by
attorney Doe which come under analysis. The first is whether the actual
dissemination of the form itself to seminar attendees is inappropriate. The second is
whether attorney Doe’s use of the names of potential clients obtained by use of the

referral form is appropriate.

The language of Rule 7.3(a) comes into play with respect to this action. Rule

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7.3(a) provides that it is impermissible for a lawyer to use “in-person or telephone
contact, or other real-time contact” to solicit professional employment for the
“lawyer’s pecuniary gain”. Rule 7.3(a) provides only limited exceptions when the
“in-person”’/direct contacts can be made, i.e., if the contact is to a lawyer, a family
member or a person with which the contacting lawyer has a personal or prior
professional relationship. The Committee assumes that the seminar attendees do not
all fall within that exception. Thus, the initial issue is whether dissemination of the
“referral form” in, and of itself, violates Rule 7.3.

The Committee does not believe that the actual dissemination of the referral
form is itself a violation of Rule 7.3. The form is not soliciting the actual attendee for
professional employment. Rather, the referral form simply asks names of individuals
the recipient of the form believes might be interested in attorney Doe’s services.

The second aspect of the request is attorney Jane Doe’s use of the names
obtained from the forms. Jane Doe, once receiving that name, might proceed to make
in person, telephone or real person contact with that individual which brings into play
subpart (b) of Rule 7.3, N.D.R. Prof. Conduct. There is no question but that the form
itself once completed by the seminar attendee with the name of a family member or
acquaintance would constitute a “prospective client.” Rule 7.3(b) which, as quoted

above, provides that a lawyer shall not solicit professional employment from a

prospective client by written, recorded, or electronic communication or by in-person,
telephone, or real-time contact even when not otherwise prohibited by paragraph
7.3(a) if: (1) the prospective client has made it known to the lawyer that the
prospective client does not want to be solicited; (2) the solicitation involves coercions;
or (3) the receipt of the solicitation is uninvited and imposes any involuntary
economic cost on the prospective client to respond. In other words, if the prospective
client on the referral form is contacted by “in-person, telephone, or real-time contact”,
Rule 7.3(a) and (b) must be read together and the result is that such contact cannot be
used unless the contact is with a lawyer; a family member; a person with whom
attorney Doe has a personal relationship; or with whom attorney Doe has a prior
professional relationship. Even if those exceptions apply and “direct contact” by
phone or otherwise is allowed under Rule 7.3(a), the contact is still impermissible if
subparagraphs (1) through (3) of 7.3(b) apply, e.g., if the prospective client advises
attorney Doe not to solicit him or her, etc. If, however, attorney Doe contacts the
prospective clients on the “referral form”’ by using letters or other written, recorded or
electronic communication, i.e., not direct contact, then the contact is not a violation of
Rule 7.3 unless the prohibited conduct and/or request not to be solicited set out in
subparagraph (1) through (3) of subpart 7.3(b) apply.

Moreover, to the extent attorney Doe’s written communication with the

prospective clients identified on the referral forms constitutes the mailing of a
brochure or other “advertising” materials, attorney Doe is directed to N.D.R. Pro. Con.

7.2 (2005) which addresses advertising of legal services.

CONCLUSION

It is the opinion of the Ethics Committee that the use of the referral form by
attorney Jane Doe in a seminar program to solicit potential clients and make in person,
telephone or real person contact with the names provided by attendees of the seminar
in the referral form is a violation of the existing language of Rule 7.3 and the conduct
would be unethical.

This opinion is provided pursuant to Rule 1.2(B), N.D.R. Lawyer Disc. The
Rule states:

A lawyer who acts with good faith and reasonable reliance on a written

opinion or advisory letter of the ethics committee of the association is

not subject to sanction for violation of the North Dakota Rules of

Professional Conduct as to the conduct that is the subject of the opinion

or advisory letter.

This opinion was drafted by James S. Hill and was approved by a unanimous
vote of the Committee on September 1, 2005.

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Mark Hanson, Chair ~.