In law school you learned it’s unethical to directly solicit potential clients; a new ABA ethics opinion says you also have an affirmative obligation to ensure your employees and associates don’t either.
American Bar Associate Ethics Opinion 501 expands the prohibition on attorneys engaging in improper direct solicitation of potential clients. The opinion was issued in August 2022 by the ABA’s Standing Committee on Ethics and Professional Responsibility.
The opinion clarifies a lawyer’s ethical responsibilities when third parties recruit and communicate on the lawyer’s behalf. The bottom line: a lawyer cannot do through another person that which the lawyer could not do directly.
Read ABA Formal Opinion 501here.
An ABA press release is here.
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ABA Formal Opinion 501
The ABA opinion says a solicitation under ABA Model Rule of Professional Conduct 7.3(a) is “a communication initiated on or behalf of a lawyer or a law firm directed to a specific person that the lawyer knows or reasonably should know needs legal services,” according to the ABA Journal. “The rule permits such direct, face-to-face solicitation if the contacted person is a lawyer, a family member or a close friend or a person who routinely uses the types of services offered by the lawyer. The opinion focuses on a lawyer’s ethical responsibilities regarding third parties who solicit on behalf of the lawyer.”
Under Model Rule 8.4(a), it is professional misconduct for a lawyer to knowingly assist or induce another to violate the rules—including engage in impermissible solicitation. 8.4(a) comes into play only if the lawyer knows of the third party’s conduct or requests or authorizes it. “It would be manifestly unfair and illogical to hold a lawyer responsible for another’s actions that the lawyer does not even know about,” according to the opinion.
Under Model Rule 5.3, lawyers with supervisor authority “must discuss ethical rules with these employees,” including the rule against solicitation in Model Rule 7.3. The opinion acknowledges that “what constitutes a prohibited ‘solicitation’ on behalf of the lawyer versus merely making a recommendation about the lawyer can be complicated.”
Here are three scenarios of improper solicitation: (1) A lawyer obtaining a list from a local sheriff of people arrested and calling such people to offer legal series. (2) A lawyer hiring a professional lead generator to obtain client leads for mass tort cases. (3) A paralegal at a law firm, who doubles as a paramedic, directly soliciting accident victims on behalf of their law firm.
From the ABA Journal: “In all three of these scenarios, the lawyers violated the ABA Model Rules of Professional Conduct by either engaging in direct solicitation in violation of Model Rule 7.3(b), knowingly assisting another in violation of the rules under Model Rule 8.4(a), or failing to train nonlawyer legal assistants on ethical responsibilities under Model Rules 5.3(b) and 5.3(c).”
Here is a scenario of solicitation that is not improper: A lawyer asks a banker, who is a personal friend or colleague, to provide the lawyer’s name and contact information to anyone that might need estate planning. The opinion says: Recommendations or referrals by third parties who are not employees of a lawyer and whose communications are not directed to statements to particular potential clients on behalf of a lawyer do not constitute solicitations.
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