Solicitation Of Clients
The rules set boundaries regarding what a lawyer may and may not do to solicit clients. The legal profession has suffered damage to its dignity by the unscrupulous sort who deems it acceptable to wander the halls of hospitals with a set of business cards in hand. The same goes for lawyers who think it a public service to hound criminal defendants in the halls of a courthouse with their business cards. No one wants to be accosted by aggressive strangers in a time of extreme vulnerability. “Ambulance chasers,” as some people call plaintiffs’ lawyers who lack boundaries when it comes to soliciting injured clients, have given the profession a bad name. The solicitation rules are designed to help maintain professional decorum.
The first rule on the list is that a lawyer may not seek work for a fee by starting a personal or live telephone contact with a prospective client whom he has never met or with whom he has no family or professional relationship. See Model Rule 7.3(a). Likewise, lawyers may not contact the spouse of someone about whom they read in the newspaper was injured in an accident, in order to solicit business.
In addition to the state bars regulating lawyer solicitation, the federal government established additional regulations on lawyer conduct. According to one of the laws, 49 U.S.C. § 1136(g)(2), lawyers may not communicate with the families or the victims of an airplane crash, until at least 45 days following the accident.
A lawyer may not make use of an agent to do something that the lawyer herself may not do. Thus, using a “runner” to bring clients in is entirely unethical. Lawyers have attempted to do end-runs around the ethical rules in creative ways, and for the most part, their attempts have left them subject to discipline.
EXAMPLE: Law Firm X made a deal with a “debt consolidation” firm. The firm’s employees would interview people who owe money, and tell them about loan opportunities and strategies for getting out of debt. If the employees suspected an individual could use legal services, they would refer the individual to the attorney. This is not an acceptable means of attracting business in the legal profession.
Exceptions to the Basic Solicitation Rule
Our basic rule is not applicable when it comes to lawyers offering their services for free. Lawyers call such public service work “pro bono,” which is short for the Latin pro bono publico, or “for the public good.” The rules encourage lawyers to get out into the community and help those in need. Therefore, if a lawyer volunteers to help someone and has no financial interest in the case, the basic solicitation rules do not apply.
EXAMPLE: A lawyer involved in arts-related causes approaches a man in a courthouse whom he learned was arrested for having himself shot in the arm for performance art’s sake. The lawyer is entitled to solicit the artist, provided the lawyer does not plan to represent the client for a fee.
Lawyers are also entitled to offer their services to family, established clients, and former clients. Again, the prohibitions apply to those individuals the lawyer does not know and with whom she has had no prior relationships.
Other exceptions to the solicitation rule exist. A lawyer is entitled to send truthful letters to people that he knows face a specific legal problem. See Model Rule 7.3. It is thought that letters are a lot less intrusive than face-to-face contact. If a person so wishes, he can simply toss the letter in the garbage without having to be bothered by it.
However, there are even rules that apply to letter-sending. Any written communication with a prospective client must bear the words “Advertising Material.” See Model Rule 7.3(c). These words must be on the outside of the envelope, as well as on the first page of any communication. If a communication is recorded – such as on a telephone answering machine or for a television commercial – the communication must begin and end by informing the viewer or listener that they are experiencing a lawyer’s advertisement.
The biggest factor behind these rules is the fear that lawyers will use coercion, harassment, or duress to achieve business. See Model Rule 7.3(b). If a person has made it known that she does not want to be solicited by a lawyer, a lawyer who does attempt to solicit that person will be subject to discipline.