Is it unethical for a Tennessee lawyer to make unsolicited contact with a non-client to seek employment, and must another lawyer who learns of it report it to the Board?

Plain-English summary

The opinion addressed two questions: whether unsolicited contact by a lawyer with a non-client seeking employment violates DR 2-103(A), and whether a lawyer who learns of such contact must report it to the Board. The opinion traced the prohibition on direct personal solicitation of prospective clients from Canon 28 of the 1908 ABA Canons of Ethics, through DR 2-103(A) of the 1969 Model Code (carried forward in Tennessee Supreme Court Rule 8), to Model Rule 7.3 of the 1983 ABA Model Rules. It quoted the comment to Model Rule 7.3 describing the potential for abuse in direct solicitation: a prospective client facing private importuning by a trained advocate in a direct interpersonal encounter may have an impaired capacity for reasoned judgment, while the soliciting lawyer faces a conflict from the lawyer's own interest in the retainer.

The opinion relied on the U.S. Supreme Court's decision in Ohralik v. Ohio State Bar Association, which held that in-person solicitation, unlike advertising, can exert pressure and demand an immediate response without an opportunity for comparison or reflection, and that a state's compelling interest in preventing the abuses of solicitation justifies a general prohibition on the practice. It also cited Shapero v. Kentucky Bar Association, which barred a state from banning targeted mail solicitations but reaffirmed Ohralik's holding that direct personal, in-person solicitation for financial gain could still be prohibited.

On the reporting question, the opinion traced the duty to expose improper professional conduct from Canon 29 of the 1908 ABA Canons, through the mandatory reporting obligation of DR 1-103(A) of the 1969 Model Code (also embodied in Tennessee Supreme Court Rule 8), to Rule 8.2(a) (cited in the opinion) of the 1983 ABA Model Rules. The opinion concluded that unsolicited contact by a lawyer with a non-client seeking employment is unethical, and that any lawyer with knowledge of such contact is ethically required to report the conduct to the Board of Professional Responsibility.

Currency note

This opinion was issued in 1988, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. 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: Was unsolicited in-person contact with a non-client to seek employment ethical under Tennessee's former Code?

A: No. The opinion concluded that unsolicited contact by a lawyer with a non-client seeking employment violated DR 2-103(A).

Q: What case law did the opinion rely on for the solicitation prohibition?

A: The opinion relied on Ohralik v. Ohio State Bar Association, upholding a general prohibition on in-person solicitation, and on Shapero v. Kentucky Bar Association, which barred banning targeted mail but reaffirmed that in-person solicitation for financial gain could still be prohibited.

Q: Did a lawyer who learned of another lawyer's unsolicited contact with a non-client have to report it?

A: Yes. The opinion concluded that any lawyer with knowledge of such unsolicited contact was ethically required under DR 1-103(A) to report the conduct to the Board of Professional Responsibility.

Background and rules framework

The opinion applied former DR 2-103(A) (the solicitation prohibition, traced from Canon 28 of the 1908 ABA Canons through Model Rule 7.3) and former DR 1-103(A) (the mandatory reporting duty, traced from Canon 29 of the 1908 ABA Canons through Model Rule 8.2(a), now Model Rule 8.3). The modern analogs are Model Rule 7.3 / Tennessee RPC 7.3 (solicitation of clients) and Model Rule 8.3 / Tennessee RPC 8.3 (reporting professional misconduct).

Citations and references

Rules of Professional Conduct (former Code):

• DR 2-103(A) (prohibition on recommending employment to a non-client who has not sought advice about employing a lawyer). Modern analog: Model Rule 7.3 / Tennessee RPC 7.3
• DR 1-103(A) (mandatory duty to report known ethical violations). Modern analog: Model Rule 8.3 / Tennessee RPC 8.3

Cases:

• Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978), upholding a general prohibition on in-person solicitation for financial gain
• Shapero v. Kentucky Bar Association, 56 LW 4532 (July 14, 1988), barring a ban on targeted mail solicitation while reaffirming Ohralik's prohibition on in-person solicitation

See also

• ISBA Op. 93-10: In-Person Solicitation of Employment
• AZ Ethics Op. 91-04: Advertising and Direct Contact With Prospective Clients
• Tenn. Ethics Op. 89-F-119: Fee Arbitration Committee Members Excused From Duty to Report

Source

• Landing page: https://www.tbpr.org/ethic_opinions/88-F-114

Original opinion text

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

88-F-114 - Unsolicited Contact with non-client

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 88-F-114

Inquiry is made (i) whether unsolicited contact by a lawyer with a non-client seeking employment is a violation of DR 2-103(A), and (ii) whether a lawyer with knowledge of such unsolicited contact is ethically required to report the conduct to the Board.

Direct personal communication with prospective clients for the purpose of securing employment as a lawyer has traditionally been prohibited. Canon 28 of the Canons of Ethics adopted by the American Bar Association (ABA) in 1908 prohibited solicitation. The Model Code of Professional Responsibility adopted by the ABA in 1969 contained the prohibition against solicitation as presently embodied in Tennessee Supreme Court Rule 8, in part as follows:

Disciplinary Rule 2-103(A) A lawyer shall not --- recommend employment --- of himself, his partner, or associate to a layperson who has not sought his advice regarding employment of a lawyer.

The anti-solicitation rule was carried forward in the Model Rules of Professional Conduct adopted by the ABA in 1983, in part, as follows:

Rule 7.3 A lawyer may not solicit professional employment from a prospective client ---.

The Comments to Model Rule 7.3 state, in part, as follows:

There is a potential for abuse inherent in direct solicitation by a lawyer of prospective clients known to need legal services. It subjects the lay person to the private importuning of a trained advocate, in a direct interpersonal encounter. A prospective client often feels overwhelmed by the situation giving rise to the need for legal services, and may have an impaired capacity for reason, judgment and protective self-interest. Furthermore, the lawyer seeking the retainer is faced with a conflict stemming from the lawyer's own interest, which may color the advice and representation offered the vulnerable prospect.

The situation is therefore fraught with the possibility of undue influence, intimidation, and overreaching. This potential for abuse inherent in direct solicitation of prospective clients justifies its prohibition, particularly since lawyer advertising ---offers an alternative means of communicating necessary information to those who may be in need of legal services.

The United States Supreme Court in the case of Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978) stated that unlike other methods of contact generally described as "advertising," inperson encounters may "exert pressure and often demand --- immediate response, without providing [the] opportunity for comparison or reflection." At page 457. The Court held that the state's compelling interest in preventing the abuses of solicitation justifies a general prohibition of the practice. The U.S. Supreme Court in the recent case of Shapero v. Kentucky Bar Association, 56 LW 4532 (July 14, 1988) prohibited an attempt to ban targeted mailings, but reaffirmed the ruling in Ohralik, infra, permitting prohibition of direct personal communication to solicit employment by prospective clients for financial gain.

Self-regulation of the legal profession requires that lawyers report known ethical violations. The 1908 ABA Canons of Ethics provided in Canon 29 that lawyers should expose improper conduct within the profession. Disciplinary Rule 1-103(A) of the 1969 ABA Model Code of Professional Responsibility embodied in Tennessee Supreme Court Rule 8 imposes a mandatory reporting obligation on every lawyer with respect to ethical violations. This mandatory obligation has also been retained in Rule 8.2(a) of the 1983 ABA Model Rules of Professional Conduct.

The unsolicited contact by a lawyer with a non-client seeking employment is unethical. Any lawyer with knowledge of such unsolicited contact is ethically required to report the conduct to the Board of Professional Responsibility.

This 2nd day of August, 1988.

ETHICS COMMITTEE:

Henry H. Hancock

Thomas H. Rainey

Edwin C. Townsend

APPROVED AND ADOPTED BY THE BOARD