Opinion 2004-5
(October 2004)

 

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 Pennsylvania has adopted amendments to the Rules of Professional Conduct which take effect January 1, 2005.  The conduct in question will not be ethical under the amended rules, and should not be engaged in after December 31, 2004.

 

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 Pennsylvania and that the legal analysis found in the pamphlet is based upon Pennsylvania law.

 

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 January 1, 2005 amended Rule 7.3a will take effect in Pennsylvania, and under that Rule direct solicitation in a chat room will be prohibited.  That amended rule can be considered in two lights as a guide to resolving the current ambiguity in the present version of Rule 7.3.  On one hand, it could be argued that the amendment was designed to clarify that the present Rule 7.3a was always meant to cover solicitations in an online chat room.  The Committee is not persuaded by this argument.  Given the purpose of the rule, i.e. to protect the public from the personal pressure found in soliciting clients, such pressures being not nearly as forceful in the chat room setting as opposed to telephone or in person contact, the Committee believes that the current rule does not cover direct solicitations in chat rooms and they are permissible until the amended rule takes effect. 

 

The inquirer's question concerning the unauthorized practice of law is directed to the ethical rules of jurisdictions other than Pennsylvania, and the Committee cannot opine on such matters.  However, as a general matter, the inquirer must avoid giving legal advice and if matters of law are touched upon during the inquirer's communications in the chat room, the inquirer must disclaim giving legal advice upon which the chat room participants can rely without consulting an attorney of their choosing.  In these instances, the inquirer must also promptly inform the chat room participants that the participants must contact an attorney in their jurisdiction to determine the law applicable there.  With these provisos, there will be no need for contingent fee agreements with chat room participants, except in those instances when a direct attorney client relationship is formed.

 

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.  

 

 

     

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.