If a lawyer referral service gives a lawyer a prospective client's contact information but the client never calls, may the lawyer reach out to see if they still need help?

Plain-English summary

A member of the public called the South Carolina Bar Lawyer Referral Service (LRS), which gave the caller the name and contact information of a participating attorney. Seven to ten working days later the attorney received a notice from the LRS disclosing the prospective client's name, contact information, and the date and type of referral. The prospective client never directly contacted the attorney. The committee was asked whether the attorney could contact the prospective client by telephone or letter to ask whether legal services were still needed.

The committee answered that it had resolved an almost identical question a decade earlier in Opinion 93-21, and that Rule 7.3(a) controls: a lawyer may not, by in-person or live telephone contact, solicit 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. Because nothing showed any family or prior professional relationship, and such a relationship is not formed merely by the LRS giving the prospective client a name and number that the client never used, a telephone call would violate Rule 7.3(a). The committee explained the rationale, quoting the Rule 7.3 comment on the potential for abuse when a trained advocate contacts a layperson directly, and noting the many innocent reasons a person might not have called (cost, second thoughts, calling for a friend), any of which could make an unsolicited call embarrassing or harmful.

The committee concluded the lawyer could instead contact the prospective client in writing to ask whether services were still needed, so long as the writing conforms to the applicable rules: Rule 7.1(a) (no false or misleading communication), Rule 7.3(b) (no mailing to a person who has said not to solicit, and no coercion, duress, or harassment), and Rule 7.3(c) (required disclaimer information on a solicitation to someone known to need legal services). It added that if the prospective client specifically consented to telephone or other contact, the lawyer could proceed, analogizing to Opinion 00-10 (an attorney emailing a prospective client who used an internet referral service and expressly consented to contact).

In practice

Under the South Carolina rules as they stood at the time of the opinion, the committee held that an indirect referral that the prospective client never acted on does not create the family or prior professional relationship that would lift Rule 7.3(a)'s bar on in-person and live telephone solicitation, so the lawyer may not cold-call such a lead, but may send a written solicitation that complies with Rules 7.1(a), 7.3(b), and 7.3(c), or may call if the client specifically consented. South Carolina substantially revised its lawyer-advertising and solicitation rules after this opinion (the Rules of Professional Conduct were revised effective 2005, with further advertising amendments thereafter); verify the current text of Rule 7.3 before relying on the specific subsections cited.

Common questions

Q: A referral service gave me a lead who never called. Can I phone them?

A: The committee concluded no, absent the client's consent: Rule 7.3(a) bars in-person or live telephone solicitation of a prospective client with no family or prior professional relationship, and an unused referral does not create one.

Q: Can I write to the lead instead?

A: The committee concluded yes, provided the written communication complies with Rule 7.1(a) (not false or misleading), Rule 7.3(b) (no contact against the person's wishes and no coercion), and Rule 7.3(c) (required disclaimer for someone known to need legal services).

Q: What if the prospective client agreed in advance to be contacted?

A: The committee concluded that if the client specifically consents to telephone or other contact, the lawyer may proceed, analogizing to its Opinion 00-10 on a prospective client who used an internet referral service and consented to be contacted.

Background and rules framework

The opinion interprets South Carolina RPC 7.3 (direct contact with prospective clients), subsections (a), (b), and (c), with Rule 7.1(a) (false or misleading communications), corresponding to the like-numbered Model Rules. The committee relied on its Opinions 93-21, 92-28, 90-37, 97-05, and 00-10.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 7.3(a) / Model Rule 7.3(a): prohibition on in-person and live telephone solicitation for pecuniary gain.
• South Carolina RPC 7.3(b), (c) / Model Rule 7.3: limits on, and required disclaimers for, written solicitation.
• South Carolina RPC 7.1(a) / Model Rule 7.1: false or misleading communications.

Other opinions cited:

• S.C. Bar Ethics Advisory Ops. 93-21, 92-28, 90-37, 97-05, 00-10 (solicitation, referral leads, and written contact).

See also

• SC Bar Ethics Op. 02-13: Reporting and warning about an impaired referral lawyer
• ABA Formal Op. 465: Deal-of-the-day marketing programs
• ABA Formal Op. 474: Referral fees and conflicts of interest

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-03-03/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 03-03

Facts:
A member of the public (“Prospective Client”) calls the South Carolina Bar Lawyer Referral Service (the “LRS”). The LRS provides Prospective Client with the name and contact information of an attorney, who is a member of the LRS. Approximately seven to ten working days later, the attorney receives a notice from the LRS, disclosing Prospective Client’s name and contact information, and the date and type of the referral. Prospective Client never directly contacts the attorney.

Question:
Under the South Carolina Rules of Professional Conduct, may an attorney contact Prospective Client by either telephone or letter to determine whether Prospective Client still requires legal services?

Summary:
Under Rule 7.3(a), absent consent, it would be impermissible for an attorney to make in-person or live telephone contact with Prospective Client to solicit professional employment as a follow-up to Prospective Client’s contact with the LRS. Nevertheless, it may be permissible for an attorney to contact Prospective Client by mail, so long as the mailing conforms to the requirements set forth in the applicable Rules of Professional Conduct. If the client specifically consents to allow an LRS referral attorney to contact the prospective client by telephone or otherwise, the attorney may do so.

Opinion:
This Committee answered an almost identical question nearly ten years ago in South Carolina Bar Ethics Advisory Opinion No. 93-21. In that opinion, the Committee found it would be improper for an attorney to contact a prospective client based on information obtained from the Prospective Client’s contact with the LRS. Under Rule 7.3(a), “[a] lawyer shall not by in-person or live telephone contact solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain.”

We note nothing in the facts of this inquiry indicates Prospective Client had either a familial or prior professional relationship with the attorney. In addition, this type of relationship cannot be formed when Prospective Client is merely “given a lawyer’s name and telephone number by [the LRS] and . . . fail[s] to call the lawyer to make an appointment.” See Ethics Adv. Op. No. 93-21.

Therefore, because no prior relationship existed and none was created as a result of Prospective Client’s contact with the LRS, an attorney would violate Rule 7.3(a) if that attorney initiated contact with Prospective Client by telephone. See id. ; see also Ethics Adv. Op. No. 92-28 (finding it an impermissible in-person solicitation for an attorney to contact a prospective client, who initiated contact not directly with the attorney, but rather by calling a “national money management membership group,” which provided the prospective client’s name and contact information to the attorney and had the attorney contact the client directly).

In these prior opinions, the Committee recognized the important rationale underlying the prohibition of unsolicited telephone calls or in-person contacts.

There is a potential for abuse inherent in direct in-person or live telephone contact by a lawyer with a prospective client known to need legal services. These forms of contact between a lawyer and a prospective client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter.

Rule 7.3 comment, quoted in Ethics Adv. Op. No. 93-21. Moreover, numerous reasons exist why a prospective client might not have contacted the attorney, whose name the LRS gave the prospective client. Prospective Clients “may not wish to pay the fee involved; they may not want that particular lawyer; they may have changed their mind or may be keeping the lawyer’s name for future use; they may have been calling for a friend.” Ethics Adv. Op. No. 93-21. Regardless of the reason for not contacting the attorney, “significant embarrassment and even harm could be caused to such a caller by receiving an unsolicited call from the lawyer.” Id. (emphasis added).

Thus, Rule 7.3(a) clearly prohibits an attorney from making in-person or telephone contact with Prospective Client when the only prior contact with the attorney was indirect, with the LRS providing the attorney with Prospective Client’s name and contact information. If the client specifically consents to allow an LRS referral attorney to contact the prospective client by telephone or otherwise, the attorney may do so.

However, the prohibition on making direct in-person or telephone contact with Prospective Client would not prohibit the LRS from providing other types of contact opportunities or from having an attorney contact Prospective Client in a different manner. See, e.g., Ethics Adv. Op. No. 00-10 (finding an attorney sending an email to a prospective client, who had accessed the website of an internet referral service and expressly consented to having the attorney contact the prospective client, was “analogous to an attorney responding to a telephone call from a prospective client when the prospective client has obtained the attorney’s name from a published list of attorneys”). Rather than contacting Prospective Client in person or via telephone, the attorney could send a written communication, inquiring as to whether legal services were still required. See Rule 7.3(c), discussed in Ethics Adv. Op. No. 93-21 (“It should be noted that Rule 7.3 does provide the lawyer with an alternative means of communication in writing with such a prospective client, providing the lawyer follows the procedures set forth in that Rule.”). Although “Rule 7.3 is intended to prohibit solicitation in situations when the method of solicitation is likely to overwhelm or unduly influence the potential client[,] [m]ail solicitation normally does not present the same risks for abuse as live, in-person solicitation.” Ethics Adv. Op. No. 90-37. Moreover, the South Carolina Rules of Professional Conduct provide additional protections for written communications being sent specifically to a prospective client, who is known to be in need of legal services. See, e.g., Ethics Adv. Op. No. 97-05 (stating Rule 7.1(a) provides every communication made by an attorney must not be false or misleading; Rule 7.3(b) prohibits mail solicitations being sent to a prospective client, who has advised the attorney the prospective client does not want to be solicited, or the solicitation involves coercion, duress, or harassment; Rule 7.3(c) sets forth specific disclaimer information that must be contained in any mail solicitation sent to a prospective client, who is known to be in need of legal services).

Thus, in the current situation, the attorney may make written contact with Prospective Client to determine whether legal services are still required, so long as the written communication conforms to the applicable rules.