Marketing is an integral part of the private practice of law. But where is the line between permissible advertising tactics and impermissible solicitation? Often it is hard to find guidance to tell you on which side of that line your marketing strategies fall. The recent ABA Opinion 501 may help. It sets forth several hypotheticals which give additional guidance if your state ethics rules don’t address strategies you are contemplating. Opinion 501 also serves as an important reminder to lawyers that the limitations on solicitation apply not only to their own solicitation of clients, but also to nonlawyers they employ or supervise, including marketing firms hired by the lawyer.
As outlined in Opinion 501, ethics rules on solicitation generally prohibit live person-to-person contact when the substantial motive is for pecuniary gain for the lawyer or the lawyer’s firm. Model Rule of Professional Conduct 7.3 provides 3 main exceptions. But even then, there are exceptions to those exceptions. Additionally, some states (e.g., New York) have significant additions to their rules. Failure to pay attention to the intricacies of Rule 7.3 can set off a chain of ethical violations for other rules—like 5.3, and potentially 8.4(a), depending on whether the questionable conduct was done by a nonlawyer employee and whether the lawyer had knowledge of that conduct.
Out of sight, out of mind
Lawyers with managerial or direct supervisory authority have the duty to make reasonable efforts to ensure the conduct of the nonlawyers they employ or retain is compatible with the lawyer’s obligations. Model Rule of Professional Conduct 5.3 extends the responsibility to the lawyer if the lawyer knew of, ratified or ordered the conduct—and for partners or lawyers with comparable managerial authority, if they know about the conduct but fail to stop or mitigate it when they have a chance.
It is all too easy to delegate certain marketing tasks to nonlawyer employees and not consider whether what they do might violate the ethical rules on soliciting clients. As noted in Opinion 501, a lawyer with supervisory authority must discuss the ethics rules with nonlawyer employees to ensure they refrain from improper solicitation on behalf of the lawyer. It is difficult for even the most attentive supervising attorney to monitor their nonlawyer employees 100% of the time, so these discussions are a must. Out of sight, out of mind doesn’t sell to many disciplinary counsel, so lawyers must draw clear boundaries of permissible conduct for their subordinates to follow. Keep in mind Model Rule 8.4(a) holds lawyers responsible for knowingly assisting or inducing another to violate the Rules of Professional Conduct. Lawyers cannot avoid the limitation on solicitation restrictions by pointing the finger at nonlawyers and have subordinate nonlawyers do it for them.
A few ABA hypotheticals to consider
- Hypothetical 1: A lawyer supervising the firm’s marketing department hires a professional lead generator to obtain client leads, without explaining the limitations on how leads should be obtained to stay within the bounds of ethics rules. Unbeknownst to the lawyer, the lead generator’s employees go into online chat rooms designated for family and survivors of mass torts, calling those family members, and inquiring as to their desire for representation. The lead generator is very successful —telling the lawyer that they just call the people online discussing accidents. The lawyer does not inquire further and tells the lead generator to keep the leads coming.
- The lawyer in this scenario violates 7.3(b) as the lead generator’s phone calls are deemed live person to person contact, 8.4(a) by accepting clients knowing they were obtained in violation of the rules, and 5.3(b) for failing to train the lead generator on the confines of solicitation rules.
- Hypothetical 2: A lawyer ask his friend, who works at a bank, to provide the lawyer’s name and contact information to customers or employees that the banker thinks may want an estate plan.
- The lawyer in this scenario does not violate 7.3(b), because these actions do not meet the definition of solicitation. The lawyer has no authority to control the banker’s conduct and this type of “word-of-mouth referral” is allowed under the model rules.
If you can’t do something, then neither can your nonlawyer employee. Don’t just assume that even the savviest employee knows all of the ethics rules—it is your responsibility to ensure that they know the ethical bounds of the actions they will employ in completing their assigned tasks.