Can a Washington lawyer make telephone calls or send mass-mailed brochures soliciting business from people the lawyer has no existing relationship with?

Plain-English summary

The committee was asked about telephone solicitation of clients and mass mailings of brochures to drum up business. It concluded that DR 2-102 would prohibit telephone solicitation of business from entities the lawyer had no current relationship with, and that the same result would follow under the proposed Rule 7.3 of the Rules of Professional Conduct then being considered by the Washington Supreme Court.

The committee noted that the United States Supreme Court's decision in In re R.M.J. had raised many constitutional questions about the proper limits on restricting lawyer advertising and solicitation. Even so, the committee's consensus was that a rule prohibiting the type of solicitation the inquiry described might be upheld as within a proper area of state authority.

Currency note

This opinion was issued under Washington's former Code of Professional Responsibility, while RPC 7.3 was still only a proposed rule. It was issued in 1986, before the 2006 revisions to the Washington Rules of Professional Conduct. Subsequent rule amendments, later opinions, and court decisions on commercial speech 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 Treat this page as historical context, not current guidance.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: Could a Washington lawyer cold-call people to solicit business under this opinion?

A: No. The committee concluded that DR 2-102 would prohibit telephone solicitation of business from entities the lawyer had no current relationship with, and that the proposed RPC 7.3 would reach the same result.

Q: Did the committee think a ban on this kind of solicitation could survive a constitutional challenge?

A: The committee acknowledged that In re R.M.J. had raised many constitutional issues about limits on lawyer advertising and solicitation, but its consensus was that a rule prohibiting the described solicitation might be upheld as within a proper area of state authority.

Q: Did the opinion treat telephone solicitation and mass mailings the same way?

A: The committee's stated conclusion addressed telephone solicitation of business from those with whom the lawyer had no current relationship; that is the prohibition it identified under DR 2-102 and the proposed RPC 7.3.

Background and rules framework

The opinion applies DR 2-102 of the Washington Code of Professional Responsibility then in force, together with the solicitation rule (Rule 7.3) that was being proposed for adoption in Washington at the time, which corresponds to Model Rule 7.3 on direct contact with prospective clients. The committee referred to In re R.M.J. as the source of unsettled constitutional questions about how far restrictions on lawyer advertising and solicitation may go.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.3 (solicitation of clients / direct contact with prospective clients)
• Washington RPC 7.3 (then proposed)
• DR 2-102 (former Washington Code of Professional Responsibility)

Cases:

• In re R.M.J. (United States Supreme Court), cited by the committee for the constitutional questions surrounding restrictions on lawyer advertising and solicitation.

See also

• ABA Formal Op. 501: responsibility for solicitation by others
• Alabama Ethics Op. 1996-05: direct-mail advertising
• WSBA Ethics Op. 1018: firm brochures and RPC 7.3

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=4

Original opinion text

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

Advisory Opinion: 840
Year Issued: 1986
RPC(s): DR 2-1-2; RPC 7.3
Subject: Advertising; telephone solicitation for clients; mass mailings of brochures for business

The Committee was of the opinion that DR 2-102 would prohibit telephone solicitation of business from entities with whom the attorney has no current relationship, as would proposed Rule 7.3 of the Rules of Professional Conduct now being considered by the Washington State Supreme Court. The Committee did note that the United States Supreme Court opinion, In re R.M.J., has raised many constitutional issues regarding the proper limit of restrictions on lawyer advertising and solicitation. However, it was the consensus of the Committee that a rule prohibiting the type of solicitation suggested by you might be upheld as within a proper area of State authority.