IMPORTANT NOTE: This opinion addresses a question of solicitation in chat rooms on the internet. While this practice may be considered ethical at the present time, the Supreme Court of
The inquirer presented three questions about his or her participation in an online chat room concerning Legionnaire's Disease. The inquirer represents a plaintiff who may have contracted Legionnaire's Disease at a hotel. The inquirer has prepared a "free of charge pamphlet on Legionnaire's disease" which "will discuss the disease within the context of the landowner's responsibility, e.g., nursing home, hotel, hospital, etc. to the person who contracted the disease." It appears that the inquirer intends to offer the pamphlet free of charge when he sees a chat room participant ask a question about the disease. The inquirer emphasizes that the pamphlet discloses his or her status as an attorney, licensed in
The questions posed by the inquirer are:
(1) What disclosures must be made in order to avoid improper solicitations under Rule 7.3 of the Pennsylvania Rules of Professional Conduct?
(2) Must the inquirer check with the disciplinary authority in each state in which a party with whom he or she communicates in the chat room resides to ensure that the state's unauthorized practice of law rules are not being violated?
(3) Must a formal contingent fee agreement be signed before advice is given?
These questions will be answered seriatim.
The inquirer asks what disclosures are necessary to avoid improper solicitations. Rule 7.3 does not establish a disclosure process to avoid prohibited solicitations. To the contrary, Rule 7.3 prohibits attorneys from soliciting professional employment, "from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motivation for the lawyer's doing so is the lawyer's pecuniary gain." Under current Rule 7.3, a lawyer may not solicit, as defined above, personally or through an intermediary by telephone or in-person.
Since Rule 7.3 does not establish a mechanism for disclosures which convert prohibited solicitations into permitted solicitations, the inquirer's question concerning Rule 7.3 really misses the point of Rule 7.3. The inquirer need not be concerned about the nature of the disclosures made; rather, he or she must determine whether solicitation is occurring in his chat room interactions. If not, then no disclosures need be made to avoid the prohibitions of Rule 7.3.
Further analysis is required if the inquirer is soliciting during his or her chat room interactions. In its current form, Rule 7.3 does not directly establish whether a chat room participant is more like an in-person or telephone conversation, which would be directly prohibited by Rule 7.3 or, in the alternative, more like a direct mail targeted advertisement recipient which would be permitted. On
The inquirer's question concerning the unauthorized practice of law is directed to the ethical rules of jurisdictions other than
While not included as one of the three questions, the inquirer has also identified a concern about compliance with Rule 4.3 because of the potential that a representative of an adversary might visit the chat room. If the inquirer recognizes a chat room participant as a representative of an adversary in Legionnaire's Disease litigation, then the inquirer must follow the dictates of Rule 4.3 by (a) not stating or implying that he or she is disinterested; (b) giving only the advice that the representative of the adversary seek the advice of the attorney representing him or her, or to secure counsel, and (c) correct any apparent misunderstandings of the inquirer's role.