ABA provides guidance on client solicitation in new ethics opinion

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The American Bar Association’s Standing Committee on Ethics and Professional Responsibility has released guidance on lawyer solicitation of new clients via “live person-to-person contact.”

Formal Opinion 501, published April 13, addresses ABA Model Rules of Professional Conduct 7.3, 8.4 and 5.3, which relate to client solicitation.

The committee found that despite 2018 amendments clarifying Rule 7.3 — which defines “solicitation” and delineates the type of solicitation that is prohibited — “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 include current employees of the lawyer, marketing firms, existing clients, former clients, friends and family of the lawyer, or even professional colleagues such as bankers, real estate agents and accountants, the committee wrote.

The opinion addresses solicitation in the context of Model Rules 8.4(a) and 5.3, which 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.

Analyzing four hypothetical situations, the opinion provides guidance for lawyers to determine what activities are permissible.

One hypothetical gave the example of a sheriff who shares a list of people arrested within the last week with an attorney, who then calls the arrestees and offers to provide general legal services. Under the current rules, that would not be permissible.

Conversely, the opinion gave the example of a lawyer asking a friend and colleague who is a banker to give the lawyer’s name and contact information to any banking customer or employee who the banker thinks might need an estate plan. In that situation, the lawyer would permissibly fall within the rules.

But Formal Opinion 501 focuses on in-person contacts only, like 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, then sending a written solicitation to a prospective client.

“Lawyers with supervisory responsibility have a duty to supervise and train all persons employed, retained, or associated with the lawyer to ensure compliance with the Rules of Professional Conduct, including Rule 7.3(b)’s prohibition” on certain types of solicitation, the opinion concludes. “Partners and lawyers possessing comparable managerial authority in a law firm must make reasonable efforts to ensure that the firm has training that reasonably assures that nonlawyer employees’ conduct is compatible with the professional obligations of lawyers. This includes training employees to refrain from impermissible solicitation of potential clients on a lawyer’s behalf.”

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