Ethical Requirements Governing Solicitation
By Carole J. Buckner
Improper in-person solicitation of clients by lawyers or their agents can result in professional discipline, and civil and criminal liability, so it is important to understand and comply with applicable regulation.
In 2018, new lawyer advertising rules were enacted with the intent, in part, that California would become more aligned with the rest of the country’s lawyer advertising rules. California’s State Bar Act was not revised, and continues to govern lawyer advertising, and more specifically for purposes of this article, lawyer solicitation of clients, to some degree.
Although California’s rules and statutes governing solicitation by lawyers differ from the ABA’s Model Rule 7.3 governing solicitation in several important respects, the ABA’s recent Formal Opinion 501 (“ABA 501”) on the topic of solicitation provides important guidance regarding solicitation not only by lawyers, but also those working with lawyers, whether directly, such as a paralegal, or indirectly, for example, as a lead generator. The opinion emphasizes the need for lawyers to properly manage, train and work within the applicable guidance with both internal staff and external consultants. This article discusses ABA 501, while noting several differences in California’s regulation of solicitation.
II. DEFINING SOLICITATION
First, to start with the basics, what is solicitation? A solicitation subject to the California rules is “an oral or written targeted communication initiated by or on behalf of the lawyer that is directed to a specific person, and that offers to provide, or can reasonably be understood as offering to provide, legal services.” California Rules of Prof. Conduct, rule 7.3(e). Importantly, an advertisement directed to the general public is not a solicitation. Rule 7.3, Comment .
California statutes also regulate “solicitation” by anyone acting as a “runner” or “capper”, defined as anyone acting as an agent for “consideration”. Cal. Bus. & Prof. Code 6151(a). Moreover, it is unlawful for any person to act as a runner or capper or to solicit business for attorneys in prisons, jails, hospitals, courts or any public place or private property, even if the person is not an agent for a lawyer. Cal. Bus. & Prof. Code 6152(a); Hutchins v. Mun. Ct. (1976) 61 Cal.App.3d 77 (attorney conspired with runner/capper soliciting auto accident victims). Where a lawyer is involved in such conduct, the lawyer is subject to discipline. Matter of Kreitenberg (Rev. Dept. 2002) 4 Cal. State Bar Ct.Rptr. 469, 478 (disbarment).
California’s Rule of Professional Conduct only governs “in-person, live telephone or real time electronic contact” involving solicitation. Rule 7.3(1)(a). The rule allows such contact if the person contacted is 1) another lawyer or 2) has a family, close personal or prior professional relationship with the lawyer. Rule 7.3 (a)(1) – (2). One hypothetical example of prohibited live, in-person solicitation discussed in ABA 501 involves a lawyer who obtains lists of arrested persons from the local sheriff, and calls them on the phone and offers to provide legal services. The conduct constitutes prohibited solicitation. ABA 501, at 4.
ABA 501 addresses the lawyer’s obligations under Model Rule 5.3, a close analog of which California has adopted. California’s version of rule 5.3 requires that lawyers with managerial responsibility over non-lawyers, whether or not employees of the same law firm, make reasonable efforts to ensure that a firm has measures in effect that give reasonable assurance that the non-lawyer’s conduct is compatible with the lawyer’s professional obligations. Rule 5.3(a). This essentially requires training, supervision and where appropriate, mitigation and remedial action. ABA 501 points out that Rule 5.3 could result in a disciplinary violation if lawyers in “management” (which would include solo practitioners involved with non-lawyer personnel) fail to take such measures, or order or ratify the conduct of another lawyer, or fail to take reasonable remedial action.
A second hypothetical scenario in ABA 501 involves a lawyer having his paralegal, who also works as a paramedic, hand out the lawyer’s business cards. Rather than asking the paralegal to conform to the rule, the supervisory lawyer congratulates her on generating business, and promises a bonus. The opinion concludes that this conduct constitutes impermissible solicitation in violation of both rule 7.3 and rule 5.3. The same would be true under the California version of the rules. Further, there is case law in California to the same effect. Attorneys who had nonlawyers solicit accident victims were held to have violated the prohibitions against solicitation, (Matter of Scapa & Brown (Rev.Dept. 1993) 2 Cal. State Bar Ct.Rptr. 635, 641-642), and were found liable for failing to properly instruct and supervise their nonlawyer employees. Matter of Nelson (Rev.Dept. 1990) 1 Cal. State Bar Ct.Rptr. 178, 184-186
IV. LEAD GENERATORS
ABA 501 also highlights the application of Rule 8.4 which provides that “a lawyer cannot do through another person that which the lawyer could not do directly.” ABA 501, at 3. The lawyer is responsible for impermissible solicitation that the lawyer requests or authorizes. One of the hypothetical factual scenarios in the opinion involves hiring a professional lead generator to obtain leads for potential clients in return for a flat monthly fee. The agreement provides no information on how the lead generator will obtain the leads, and the lawyer does not direct the process. The lead generator pays employees to lurk in online chat rooms for family members and survivors involved in possible mass torts, and calls the persons involved and advises of the lawyer’s availability and experience in mass tort matters. The lawyer becomes aware of the lead generator’s methodology. The opinion concludes this conduct violates rule 7.3 because it involves live, person-to-person contact. The lawyer also violated rule 5.3 by accepting the leads, ratifying the conduct rather than mitigating the violation, and by failing to train the lead generator to conform to ethical requirements. The conclusion under applicable California authority would be similar.
Importantly, limited knowledge on the part of the lawyer of the methodology employed in lead generation may not protect the lawyer. ABA 501 states that a lawyer may be found to have knowledge when the lawyer consciously and deliberately fails to inquire into the facts. Under California’s rule 1.0.1(f), knowledge may be inferred from the circumstances.
V. GRATUITOUS REFERRALS
The final hypothetical factual scenario in ABA 501 involves a lawyer asking a personal friend who is a banker to recommend the lawyer to the banker’s customers and employees for estate planning. That is permissible under Rule 7.3 because the lawyer is not targeting specific persons or controlling the banker’s communications. Lawyers may build their practice on referrals by satisfied clients and lawyers may suggest that clients provide a favorable review online. ABA 501 states that “Recommendations or referrals by third parties who are not employees of the lawyer and whose communications are not directed to make specific statements to particular potential clients on behalf of the lawyer do not constitute “solicitations” under rule 7.3.” Similarly, the recommendation or willingness to recommend an attorney upon inquiry by a third party does not constitute a prohibited solicitation in California. People v. Levy, (Super. 1935) 8 Cal.App.2d Supp. 763.
Avoiding impermissible solicitation involves not only knowing the applicable rules, but also training staff and consultants to abide by limitations on solicitation.
Carole J. Buckner is a partner and general counsel with Procopio, Cory, Hargreaves & Savitch LLP, and a member of the California Lawyers Association’s Committee on Legal Ethics. The views expressed herein are her own.