Can a lawyer who receives a client through a county bar referral service make the first phone call or in-person contact if the caller said they want the lawyer to call them?

Plain-English summary

The inquirer chaired a county bar association lawyer referral service and asked whether RPC 7.3(a) would permit an attorney to make the initial contact with a referred prospective client where, as part of the referral interview, the caller indicated a desire for the referred lawyer to make that first contact (noted on the referral form). The inquirer explained that many callers, particularly elderly callers and those with disabilities, assume the lawyer will call them, and that some referral clients do not initiate the call after contacting the service.

The committee reaffirmed its earlier Informal Opinion 1956 (2001), which concluded that participating attorneys may not initiate telephone or personal contact with prospective clients referred by a county bar lawyer referral service, and that the attorney-client relationship does not exist until the potential client first contacts the attorney. The committee said RPC 7.3(a) precludes a lawyer from soliciting employment from a prospective client in person or by telephone, absent a family or prior professional relationship, when a significant motivation is pecuniary gain, and that the rule's purpose is to avoid exposing the prospective client to undue pressure to retain the lawyer.

The committee found no express exception in RPC 7.3(a) for these circumstances and no sound basis to imply one. It reasoned that seeking referral services, receiving a referral, or indicating a desire for the referred lawyer to make contact does not amount to a decision to employ the lawyer or create an attorney-client relationship, so the lawyer would still be soliciting employment and posing the same risk of pressure the rule addresses. Securing the prospective client's permission to initiate contact does not remove the contact from the rule or distinguish it from Informal Opinion 1956. The committee noted an alternative: the lawyer may send a follow-up letter inviting the prospective client to arrange an appointment and explaining how, under RPC 7.3(b), though if the client does not respond, the silence may indicate a desire not to receive further communications.

Currency note

This opinion was issued in 2002, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. Washington later amended its solicitation rule (RPC 7.3); the rule numbering in this opinion reflects the pre-2006 rules. 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.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee treated RPC 7.3(a) as prohibiting a referral-service lawyer from initiating in-person or telephone contact with a referred prospective client, even where the caller asked the lawyer to make the first contact, because asking for and receiving a referral does not create an attorney-client relationship and the contact poses the same risk of pressure the rule addresses. The committee treated a follow-up letter inviting the prospective client to make an appointment as the permitted alternative under RPC 7.3(b), and noted that if the client does not respond, the silence may be taken to indicate a desire not to receive further communications.

Common questions

Q: Can a referral-service lawyer call a prospective client who asked to be called?

A: No. The committee concluded RPC 7.3(a) has no exception for this situation; a caller's request that the lawyer make initial contact does not amount to deciding to employ the lawyer, so the lawyer would still be soliciting employment in person or by phone.

Q: Does the prospective client's permission make the call permissible?

A: The committee said securing the prospective client's permission to initiate contact does not remove the contact from RPC 7.3(a)'s prohibition or present circumstances different enough from Informal Opinion 1956 to depart from it.

Q: What can the referred lawyer do instead?

A: The committee said the lawyer may send a follow-up letter inviting the prospective client to arrange an appointment and explaining how, under RPC 7.3(b); but if the client does not respond, the silence may be taken to indicate a desire not to receive further communications.

Q: What did the earlier Informal Opinion 1956 conclude?

A: The committee said Informal Opinion 1956 (2001) concluded it is not permissible under RPC 7.3 for participating attorneys to initiate telephone or personal contact with prospective clients referred by a county bar lawyer referral service, and that the attorney-client relationship does not exist until the potential client first contacts the attorney.

Background and rules framework

The opinion applies Washington RPC 7.3 (direct contact with prospective clients; solicitation; corresponding to Model Rule 7.3), reaffirming Informal Opinion 1956. The committee identified the rule's purpose as avoiding undue pressure on a prospective client to retain a lawyer, a risk it described as more likely to arise with in-person or telephone solicitation. The opinion reflects Washington's pre-2006 rule numbering.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.3 / Washington RPC 7.3(a), 7.3(b) (direct contact with prospective clients; permitted written communication)

Other opinions cited:

• WSBA Informal Opinion 1956 (2001): referral-service attorneys may not initiate telephone or personal contact with referred prospective clients; the attorney-client relationship does not exist until the client first contacts the attorney.

See also

• WSBA Ethics Op. 1148: Contacting Real Estate Brokers for Closing Referrals
• WSBA Ethics Op. 1603: Chamber of Commerce Breakfast, No In-Person Solicitation
• WSBA Ethics Op. 1444: County Bar Referral Service Volunteer Lawyer Duties
• WSBA Ethics Op. 1218: Targeted Direct-Mail Solicitation Permitted

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1229

Original opinion text

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

Advisory Opinion: 1979
Year Issued: 2002
RPC(s): RPC 7.3
Subject: lawyer referral, client contact

The inquirer is the chair of a County Bar Association Lawyer Referral Service and asks whether it would be permissible under RPC 7.3(a) for an attorney to make the initial contact with a prospective client under the following circumstances: as part of the referral service interview, the caller is asked and indicates that he or she would like the attorney receiving the referral to make the initial contact. This information is included on the referral form received by the attorney. The inquiry does not explicitly state that the initial contact would be in person or by phone, but that is implied by the inquiry’s focus on RPC 7.3(a).

The inquirer states that the major reason for this proposal is “that it appears that a number of callers, particularly elderly callers and those with some types of disabilities, assume that the attorney is going to call them or give up after discovering that they need to initiate additional actions”. The inquirer further advises that “[o]ne panel member who concentrates his practice in Social Security claims indicates that in his experience many referral clients do not initiate the call after they have gone to the effort of contacting the referral service.”

As the inquiry indicates, the RPC Committee issued Informal Opinion 1956 concerning this program in 2001. Informal opinion 1956 concluded that “it is not permissible under RPC 7.3 for the participating attorneys to initiate telephone or personal contact with prospective clients who have been referred to them by a county bar association lawyer referral service”. It further states that the “attorney-client relationship does not properly exist unless and until the potential client has first made contact with the attorney”.

The committee opined:

RPC 7.3(a) precludes a lawyer from soliciting employment from a prospective client in person or by telephone, absent a family or prior professional relationship with the client, when a significant motivation is the lawyer’s pecuniary gain. The purpose of the rule is to avoid exposing the prospective client to undue pressure to retain the lawyer’s services—a risk that is more likely to arise where the prospective client is exposed to an in-person or telephone solicitation of employment.

RPC 7.3(a) contains no express exception for the circumstances outlined by your inquiry. Nor would there appear to be a sound basis for implying an exception in light of the purpose of the rule. The fact that a person seeks referral services, receives a referral, or indicates a desire to have the referred lawyer initiate contact does not amount to a decision to employ the attorney or create an attorney-client relationship. Thus, the lawyer would be contacting the prospective client to solicit employment, in much the same way that a lawyer would absent involvement of a referral service. In this important respect, the outlined circumstances pose essentially the same risk of pressure or undue influence that RPC 7.3(a) is intended to prevent. Securing permission from the prospective client for the lawyer to initiate contact does not remove such contact from the prohibition of the rule, or present circumstances sufficiently different from those considered in Informal Opinion 1956 to depart from it. Informal Opinion 1956 concluded that it is not permissible under RPC 7.3(a) for attorneys participating in lawyer referral services to initiate telephone or personal contact with prospective clients who have been referred to them.

Alternative means for the lawyer to facilitate contact by the prospective client also argue against implying an exception to RPC 7.3(a). The lawyer may send a follow-up letter to the prospective client inviting him or her to arrange for an appointment and explaining how to do so. See RPC 7.3(b). Note, however, that if the prospective client does not respond to such a mailing, his or her silence may be taken to indicate that the prospective client “desire[s] not to receive communications from the lawyer” for purposes of any subsequent correspondence. RPC 7.3(b).