ABA clarifies rules on solicitation for new clients

The American Bar Association Standing Committee on Ethics and Professional Responsibility has released a formal opinion that seeks to clarify several ABA Model Rules of Professional Conduct as they relate to lawyer solicitation for new clients and “live person-to-person contact.”

Formal Opinion 501 addresses Rule 7.3(b), as amended in 2018, which defines client solicitation and includes the general prohibition against live, person-to-person solicitation of legal services where a significant motive is “pecuniary gain.”

The new formal opinion also considers solicitation in the context of Model Rules 8.4(a) and 5.3, which together extend a lawyer’s responsibility for solicitation not only to actions carried out by the lawyer directly but also to persons employed by, retained by or associated with the lawyer under certain circumstances.

In explaining the need for the new guidance, the opinion said that despite changes four years ago to Rule 7.3, “ambiguity remains concerning a lawyer’s ethical responsibility for the lawyer’s actions and for the actions of others who engage in live, person-to-person solicitation with specific individuals.”

“The scope of ‘others’ who might solicit on behalf of a lawyer could include, for instance, current employees of the lawyer, marketing firms hired by the lawyer, existing clients, former clients, friends and family of the lawyer, or even professional colleagues such as bankers, real estate agents and accountants,” the opinion noted. “Traditionally, lawyers often have obtained new clients because the firm’s existing clients tell their friends, business colleagues or family members about positive lawyer-client experiences. Many of these communications do not fall within the Rule 7.3 definition of ‘solicitation.’”

The opinion analyzes four hypothetical situations intended to provide guidance for lawyers to determine what activities are permissible. When a lawyer, for instance, obtains a list from the local sheriff of persons arrested within the last week, calls them on the telephone and offers to provide general legal services, that would not be permissible under the model rules, the opinion said.

But, in certain circumstances, if a lawyer asks a personal friend and colleague who is a banker to provide the lawyer’s name and contact information to any banking customer or employee that the banker thinks might need an estate plan, that permissibly falls within the rules.

“The Rules of Professional Conduct are ‘rules of reason,’” the opinion said. “Recommendations or referrals by third parties who are not employees of a lawyer and whose communications are not directed to make specific statements to particular potential clients on behalf of a lawyer do not constitute ‘solicitations’ under Rule 7.3.”

The guidance provided by Formal Opinion 501 focuses on in-person contacts only, such as direct meetings or telephone calls. It does not cover efforts by lawyers to glean information from court records or other public sources either directly or through third parties and then sending a written solicitation to a prospective client.