Must a South Carolina lawyer file every mass solicitation letter with the Board, or only those sent to people known to need legal services?

Plain-English summary

A lawyer who received from the Chamber of Commerce a list of people who had requested information on a subject wanted to mail those people letters introducing the firm as a general practice, twice a month as new lists arrived, without knowing that any recipient needed legal services. The lawyer asked whether Rule 7.3(d) required filing a copy of each letter with the Board of Commissioners on Grievances and Discipline within ten days. The committee declined to opine on the specific letter's content and addressed only the filing question.

The committee identified the ambiguity in Rule 7.3(d), which requires filing "every written or recorded communication subject to this Rule." On one reading, because every solicitation is subject to some part of Rule 7.3 (such as the anti-harassment provision in 7.3(b) and the recordkeeping provision in 7.3(e)), every written solicitation would have to be filed. On the other reading, the phrase "subject to this Rule" and the placement of 7.3(d) immediately after 7.3(c), which sets out the notices and disclaimers required for solicitations of persons "known to be in need of legal services in a particular matter," suggest filing is required only for communications subject to 7.3(c).

The committee concluded the narrower reading is reasonable. Because the Court required the Rule 7.3(c) notices only for communications targeted to persons known to need legal services, it showed greater concern about the potential for abuse in those communications, and Rule 7.3(d) may reasonably be interpreted to apply only to communications covered by Rule 7.3(c). The committee noted the most conservative approach would be to file every written solicitation.

Currency note

This opinion was issued in 1995, 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 Treat this page as historical context, not current guidance.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 a lawyer have to file every solicitation letter with the Board?

A: The committee concluded the reasonable reading of Rule 7.3(d) requires filing only solicitations subject to Rule 7.3(c), those targeting persons known to need specific legal services.

Q: Why is the rule ambiguous?

A: The committee explained that because every solicitation is subject to some part of Rule 7.3, the phrase "subject to this Rule" could be read broadly, but its placement after 7.3(c) supports the narrower reading.

Q: What is the most cautious approach?

A: The committee noted the most conservative approach to Rule 7.3 would be to file every written solicitation.

Background and rules framework

The opinion construed Rule 7.3 (direct contact with prospective clients), focusing on the relationship between subsection (c) (notices and disclaimers for solicitations of persons known to need legal services) and subsection (d) (the filing requirement), corresponding to Model Rule 7.3 as the South Carolina rule stood in 1995.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 7.3(c) / Model Rule 7.3: notices and disclaimers for targeted solicitations.
• South Carolina RPC 7.3(d) / Model Rule 7.3: filing solicitations with the Board.

See also

• SC Bar Ethics Op. 96-20: Solicitation by Videotape
• SC Bar Ethics Op. 96-08: Paying a Bondsman to Place Cards

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-95-31/

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 95-31

As a member of the Chamber of Commerce, lawyer is entitled to receive from the Chamber a list of people who have called or written to the Chamber requesting information about a particular subject. Lawyer wants to write letters to these people, introducing the lawyer and the lawyer's firm. Lawyer is not aware that any of the people to be contacted have any specific need for legal services. The purpose of the lawyer's proposed contact would be to make these people aware that the firm exists as a general practice law firm in the event that any of the people should ever need the services of a lawyer. Letters would be mailed twice each month as new lists are made available by the Chamber.

Question:
Does a letter of the type suggested violate any of the rules concerning lawyer advertising? In particular, does Rule 7.3(d) require that the lawyer file a copy of the letter with the Board of Commissioners on Grievances and Discipline within ten (10) days after every written communication is sent?

Summary:
Rule 7.3(d) is ambiguous in describing the written solicitations that must be filed. While it might be argued that a lawyer must file virtually all written solicitations, the Committee believes that it is a reasonable interpretation of Rule 7.3(d) to require only the filing of solicitations subject to Rule 7.3(c).

Opinion:
Although a draft letter of the type proposed to be sent by the lawyer was included with this request for advice, the Committee does not offer any opinion as to whether the specific contents of the letter comply with advertising and solicitation rules. We address only the more general question of whether a lawyer is required to file with the proper authorities copies of each written solicitation made to persons who have contacted a local Chamber of Commerce, but who are not known by the lawyer to be in need of specific legal services.

Rule 7.3(d) requires that a lawyer file with the Board of Commissioners on Grievances and Discipline "[e]very written or recorded communication subject to this Rule." The issue is whether this language requires the filing of every written solicitation or of only those communications subject to Rule 7.3(c), which are targeted to persons known to be in need of specific legal services.

Arguably, by including within the scope of Rule 7.3(d) every communication subject to Rule 7.3, the Court has imposed the broader requirement that every written or recorded solicitation be filed with the Board of Commissioners. Every written solicitation by a lawyer is subject, for example, to Rule 7.3(b), which provides that no written solicitation from a lawyer may harass a recipient. Likewise, Rule 7.3(e) requires that proper records of "written or recorded" contacts be maintained by the lawyer, including specifically "[t]he basis by which the lawyer knows that the person solicited needs legal service". Despite the latter reference to persons in need of legal services, the section does not otherwise limit its application only to contacts with persons known to be in need of legal services. It would seem to follow that if every written solicitation is subject to some part of Rule 7.3, then every written solicitation must be filed under Rule 7.3(d).

On the other hand, if the Court intended so broad an interpretation, it might easily have drafted the rule simply to direct the filing of all written solicitations. Instead, because the Court required the filing only of written solicitations "subject to this Rule," the language of Rule 7.3(d) suggests some limitation upon the types of communications required to be filed. Given the placement of Rule 7.3(d), immediately following Rule 7.3(c) which sets forth extensive notices and disclaimers that must be included in every written solicitation of persons "known to be in need of legal services in a particular matter," subsection (d) may reasonably be interpreted more narrowly to apply only to communication subject to the preceding subsection (c).

Although the most conservative approach to Rule 7.3 would be to file every written solicitation, we believe a less comprehensive interpretation is reasonable. Rule 7.3 clearly distinguishes between communications made to people known to be in need of legal services and other communications. By requiring the notices of Rule 7.3(c) only in communications targeted to persons known to be in need legal services, the Court has indicated that it is far more concerned about the potential for abuse in such communications, as compared with communications made to persons not in need of immediate services. Given the limiting language of Rule 7.3(d), suggesting that not all types of communications must be filed with the Board of Commissioners, we believe it would be reasonable to interpret Rule 7.3(d) as applying only to those communications covered by Rule 7.3(c).