Opinion 2005-3

(November 2005)

The inquirer asks whether, pursuant to Pennsylvania Rule of Professional Conduct (“the Rules”) 7.3 (a), it is permissible for someone hired to do marketing and/or public relations by a law firm to contact someone in-person or by telephone if the marketing person (as opposed to someone at the law firm) has a close personal or prior professional relationship with the proposed contact. The inquirer further notes that this does not appear to present an abusive situation (like those contemplated by the Rules) where the law firm and/or its agent is making in-person or telephone contacts without any close, personal or prior professional relationships. In addition, the contact proposed is not necessarily with a potential client.

Rule 7.3a provides that:

A lawyer shall not solicit in-person or by intermediary professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted is a lawyer or has a family, close personal, or prior professional relationship with the lawyer. The term ‘‘solicit’’ includes contact in-person by telephone or by real-time electronic communication, but, subject to the requirements of Rule 7.1 and Rule 7.3(b), does not include written communications, which may include targeted, direct mail advertisements.

Comment 1 to that Rule provides that:

There is a potential for abuse inherent in direct solicitation, including in-person, telephone or real-time electronic communication, by a lawyer of prospective clients known to need legal services. These forms of contact subject the lay person to the private importuning of a trained advocate, in a direct interpersonal encounter. The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer’s presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and over-reaching.

Rule 8.4a provides that:

It is professional misconduct for a lawyer to:

violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

It is clear from the face of both Rules 7.3 and 8.4a that in person solicitation outside the parameters delineated in Rule 7.3 is prohibited, whether done by an attorney directly or through an intermediary, i.e. the marketing/public relations individual. It is also clear that the pre-existing relationship in Rule 7.3a has to be one with the lawyer and not with the marketing/public relations person.

The Committee would like to discuss the Comment to the Rule and whether it impacts the scope of the Rule’s application. Comment 1 focuses on the concern of overreaching and fleshes out the motivation for having the Rule. Contact may not be made in a situation where there is an immediate need for legal services. The inquiry indicates that marketing may not be for the purposes of obtaining immediate legal employment, but rather just to let the recipient of the contact know about the lawyer and the law firm, thus possibly falling outside the scope of the Rule.

The Committee believes the main purpose of marketing and public relations is to eventually obtain business, so that whenever anybody is contacted, regardless of his or her need for immediate legal services, that person is being solicited in the hopes of getting that person to become the lawyer’s client at some point in the future. Clearly, pecuniary gain is the primary motive. Furthermore, although Comment 1 does refer to the immediate need for legal services, it clearly does not limit application of Rule 7.3 (or 8.4a) to those situations only.

As such, it is the opinion of the Committee that the proposed contact is prohibited by the Rules of Professional Conduct.

CAVEAT: The foregoing opinion is advisory only and is based upon the facts set forth above. The opinion is not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. It carries only such weight as an appropriate reviewing authority may choose to give it.

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.