88-F-114 - Unsolicited Contact with non-client

 

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 88-F-114


Inquiry is made (i) whether unsolicited contact by a lawyer with a non-client seeking employment is a violation of DR 2-103(A), and (ii) whether a lawyer with knowledge of such unsolicited contact is ethically required to report the conduct to the Board.

Direct personal communication with prospective clients for the purpose of securing employment as a lawyer has traditionally been prohibited. Canon 28 of the Canons of Ethics adopted by the American Bar Association (ABA) in 1908 prohibited solicitation. The Model Code of Professional Responsibility adopted by the ABA in 1969 contained the prohibition against solicitation as presently embodied in Tennessee Supreme Court Rule 8, in part as follows:

Disciplinary Rule 2-103(A) A lawyer shall not --- recommend employment --- of himself, his partner, or associate to a layperson who has not sought his advice regarding employment of a lawyer.

The anti-solicitation rule was carried forward in the Model Rules of Professional Conduct adopted by the ABA in 1983, in part, as follows:

Rule 7.3 A lawyer may not solicit professional employment from a prospective client ---.

The Comments to Model Rule 7.3 state, in part, as follows:

There is a potential for abuse inherent in direct solicitation by a lawyer of prospective clients known to need legal services. It subjects the lay person to the private importuning of a trained advocate, in a direct interpersonal encounter. A prospective client often feels overwhelmed by the situation giving rise to the need for legal services, and may have an impaired capacity for reason, judgment and protective self-interest. Furthermore, the lawyer seeking the retainer is faced with a conflict stemming from the lawyer's own interest, which may color the advice and representation offered the vulnerable prospect.

The situation is therefore fraught with the possibility of undue influence, intimidation, and overreaching. This potential for abuse inherent in direct solicitation of prospective clients justifies its prohibition, particularly since lawyer advertising ---offers an alternative means of communicating necessary information to those who may be in need of legal services.

The United States Supreme Court in the case of Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978) stated that unlike other methods of contact generally described as "advertising," inperson encounters may "exert pressure and often demand --- immediate response, without providing [the] opportunity for comparison or reflection." At page 457. The Court held that the state's compelling interest in preventing the abuses of solicitation justifies a general prohibition of the practice. The U.S. Supreme Court in the recent case of Shapero v. Kentucky Bar Association, 56 LW 4532 (July 14, 1988) prohibited an attempt to ban targeted mailings, but reaffirmed the ruling in Ohralik, infra, permitting prohibition of direct personal communication to solicit employment by prospective clients for financial gain.

Self-regulation of the legal profession requires that lawyers report known ethical violations. The 1908 ABA Canons of Ethics provided in Canon 29 that lawyers should expose improper conduct within the profession. Disciplinary Rule 1-103(A) of the 1969 ABA Model Code of Professional Responsibility embodied in Tennessee Supreme Court Rule 8 imposes a mandatory reporting obligation on every lawyer with respect to ethical violations. This mandatory obligation has also been retained in Rule 8.2(a) of the 1983 ABA Model Rules of Professional Conduct.

The unsolicited contact by a lawyer with a non-client seeking employment is unethical. Any lawyer with knowledge of such unsolicited contact is ethically required to report the conduct to the Board of Professional Responsibility.

This 2nd day of August, 1988.

ETHICS COMMITTEE:

Henry H. Hancock
Thomas H. Rainey
Edwin C. Townsend

APPROVED AND ADOPTED BY THE BOARD