Can a lawyer send other lawyers a letter offering to serve as a mediator, and does the solicitation rule govern it?

Plain-English summary

A lawyer wished to write other lawyers announcing his availability to serve as a mediator in civil litigation, describing his areas of experience and mediation training, without reference to any specific pending case. The committee was asked whether Rule 7.3 prohibited the letter and, if not, whether the letter still had to carry Rule 7.3's required information even though it would not go to prospective clients known to need legal services.

The committee concluded Rule 7.3 does not apply. Mediation is not a legal service, and Bar admission is not a prerequisite to serving as a mediator, so the rule governing solicitation of "professional employment" does not reach materials offering non-legal services. Rule 7.3 also governs only contacts with "prospective clients," and the letter would go only to lawyers, not to the parties to any potential mediation. The committee aligned with a Maryland ethics opinion reaching the same result. It cautioned, however, that other obligations apply: Rule 7.1 bars any false or misleading communication, so if Lawyer A uses firm letterhead he must make clear he is not offering legal services and will not represent any party in the mediation (while, without firm letterhead, there is generally no per se duty to disclose that he is a lawyer absent circumstances making nondisclosure misleading); and Rule 7.4 governs the use of terms such as "expert," "authority," or "specialist" in describing his experience.

Currency note

This opinion was issued in 1994, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Does the solicitation rule (Rule 7.3) govern a letter offering mediation services?

A: The committee concluded no. Mediation is not a legal service and the letter goes only to lawyers, not prospective clients, so Rule 7.3 does not apply.

Q: Are there any limits on the letter?

A: Yes. Rule 7.1 bars false or misleading statements, so if firm letterhead is used the lawyer must make clear he is not offering legal services or representing any party, and Rule 7.4 governs claims like "expert" or "specialist."

Q: Must the letter disclose that the sender is a lawyer?

A: If firm letterhead is not used, the committee saw no per se duty to disclose that the sender is a lawyer, absent special circumstances that would make the omission misleading.

Background and rules framework

The opinion applied Rule 7.3 (direct solicitation of professional employment), Rule 7.1 (false or misleading communications), and Rule 7.4 (communication of fields of practice and specialization), holding that Rule 7.3 does not reach an offer of non-legal mediation services to other lawyers. The South Carolina rule numbers correspond to the like-numbered Model Rules as they existed in 1994.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 7.3 / Model Rule 7.3: direct solicitation of professional employment.
• South Carolina RPC 7.1 / Model Rule 7.1: false or misleading communications.
• South Carolina RPC 7.4 / Model Rule 7.4: communication of fields of practice; claims of specialization.

Other opinions cited:

• Maryland State Bar Ass'n Ethics Op. 93-10 (1993): solicitation rules do not govern an offer of non-legal services.

See also

• SC Bar Ethics Op. 94-26: Direct-Mail Brochures and Solicitation
• SC Bar Ethics Op. 94-27: Practicing Law Through an Online Service

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-94-10/

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 94-10

Lawyer A wishes to notify other lawyers by letter of Lawyer A's availability to serve as a mediator in civil litigation. The letter would indicate areas of practice in which Lawyer A has experience and would mention Lawyer A's training as a mediator. The letter would offer the services of Lawyer A as a mediator without reference to any specific pending cases.

Questions:
Is a letter of the type described prohibited under Rule 7.3?
If not, must the letter contain the information required by Rule 7.3, even though it would not be sent to "prospective clients known to be in need of legal services in a particular matter?"

Summary:
Because a letter to other lawyers offering mediation services is not a solicitation to provide legal services to a prospective client, Rule 7.3 does not apply. However, the lawyer must be careful that any communication is not false or misleading in violation of Rule 7.1 and that it does not violate Rule 7.4 regarding claims of expertise or specialization.

Opinion:
Mediation is not a legal service, and admission to the Bar is not a prerequisite to service as a mediator. The principle inquiry, therefore, concerns the ethical obligations of a lawyer who offers non-legal services through mail solicitation.

Rule 7.3 governs the solicitation by a lawyer of "professional employment" and does not apply to solicitation materials used by a lawyer offering his or her services in a non-legal capacity. Moreover, Rule 7.3 governs only contacts with "prospective clients." The correspondence described in this inquiry would not be sent to any prospective clients. Indeed, it would be sent only to lawyers, not even directly to the parties involved in any potential mediation. For these reasons, we conclude that Rule 7.3 does not prohibit or govern the content of the proposed communications. This conclusion is in accord with a recent advisory opinion of the Maryland State Bar Association Committee on Ethics (Opinion 93-10, Jan. 1993) digested in 9 ABA/BNA Lawyers' Manual on Professional Conduct 43.

Other general ethical obligations, however, may be implicated by the proposed communication. Most importantly, Rule 7.1 imposes a general obligation on lawyer not to "make a false of misleading communication about the lawyer or the lawyer's services." Thus, to the extent that Lawyer A uses law firm letterhead for the communication, it is important to make clear that Lawyer A is not proposing to offer legal services, and Lawyer A must avoid any suggestion that he or she will be representing any of the parties in the mediation. On the other hand, if Lawyer A does not use law firm letterhead, there would not appear to be a per se obligation to inform the recipient of the fact that A is a lawyer, absent special circumstances that would cause the failure to disclose that information to be misleading.

Lawyer A must avoid any false misrepresentations and, in describing areas of experience, must comply with the requirements of Rule 7.4 regarding the use of terms such as "expert," "authority," or "specialist."