UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER鈥橲 CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 03-03
Facts:
A member of the public (鈥淧rospective Client鈥�) calls the 91黑料爆料 Lawyer Referral Service (the 鈥淟RS鈥�). The LRS provides Prospective Client with the name and contact information of an attorney, who is a member of the LRS. Approximately seven to ten working days later, the attorney receives a notice from the LRS, disclosing Prospective Client鈥檚 name and contact information, and the date and type of the referral. Prospective Client never directly contacts the attorney.
Question:
Under the South Carolina Rules of Professional Conduct, may an attorney contact Prospective Client by either telephone or letter to determine whether Prospective Client still requires legal services?
Summary:
Under Rule 7.3(a), absent consent, it would be impermissible for an attorney to make in-person or live telephone contact with Prospective Client to solicit professional employment as a follow-up to Prospective Client鈥檚 contact with the LRS. Nevertheless, it may be permissible for an attorney to contact Prospective Client by mail, so long as the mailing conforms to the requirements set forth in the applicable Rules of Professional Conduct. If the client specifically consents to allow an LRS referral attorney to contact the prospective client by telephone or otherwise, the attorney may do so.
Opinion:
This Committee answered an almost identical question nearly ten years ago in 91黑料爆料 Ethics Advisory Opinion No. 93-21. In that opinion, the Committee found it would be improper for an attorney to contact a prospective client based on information obtained from the Prospective Client鈥檚 contact with the LRS. Under Rule 7.3(a), 鈥淸a] lawyer shall not by in-person or live telephone contact solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer鈥檚 doing so is the lawyer鈥檚 pecuniary gain.鈥�
We note nothing in the facts of this inquiry indicates Prospective Client had either a familial or prior professional relationship with the attorney. In addition, this type of relationship cannot be formed when Prospective Client is merely 鈥済iven a lawyer鈥檚 name and telephone number by [the LRS] and . . . fail[s] to call the lawyer to make an appointment.鈥� See Ethics Adv. Op. No. 93-21.
Therefore, because no prior relationship existed and none was created as a result of Prospective Client鈥檚 contact with the LRS, an attorney would violate Rule 7.3(a) if that attorney initiated contact with Prospective Client by telephone. See id. ; see also Ethics Adv. Op. No. 92-28 (finding it an impermissible in-person solicitation for an attorney to contact a prospective client, who initiated contact not directly with the attorney, but rather by calling a 鈥渘ational money management membership group,鈥� which provided the prospective client鈥檚 name and contact information to the attorney and had the attorney contact the client directly).
In these prior opinions, the Committee recognized the important rationale underlying the prohibition of unsolicited telephone calls or in-person contacts.
There is a potential for abuse inherent in direct in-person or live telephone contact by a lawyer with a prospective client known to need legal services. These forms of contact between a lawyer and a prospective client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter.
Rule 7.3 comment, quoted in Ethics Adv. Op. No. 93-21. Moreover, numerous reasons exist why a prospective client might not have contacted the attorney, whose name the LRS gave the prospective client. Prospective Clients 鈥渕ay not wish to pay the fee involved; they may not want that particular lawyer; they may have changed their mind or may be keeping the lawyer鈥檚 name for future use; they may have been calling for a friend.鈥� Ethics Adv. Op. No. 93-21. Regardless of the reason for not contacting the attorney, 鈥渟ignificant embarrassment and even harm could be caused to such a caller by receiving an unsolicited call from the lawyer.鈥� Id. (emphasis added).
Thus, Rule 7.3(a) 91黑料爆料arly prohibits an attorney from making in-person or telephone contact with Prospective Client when the only prior contact with the attorney was indirect, with the LRS providing the attorney with Prospective Client鈥檚 name and contact information. If the client specifically consents to allow an LRS referral attorney to contact the prospective client by telephone or otherwise, the attorney may do so.
However, the prohibition on making direct in-person or telephone contact with Prospective Client would not prohibit the LRS from providing other types of contact opportunities or from having an attorney contact Prospective Client in a different manner. See, e.g., Ethics Adv. Op. No. 00-10 (finding an attorney sending an email to a prospective client, who had accessed the website of an internet referral service and expressly consented to having the attorney contact the prospective client, was 鈥渁nalogous to an attorney responding to a telephone call from a prospective client when the prospective client has obtained the attorney鈥檚 name from a published list of attorneys鈥�). Rather than contacting Prospective Client in person or via telephone, the attorney could send a written communication, inquiring as to whether legal services were still required. See Rule 7.3(c), discussed in Ethics Adv. Op. No. 93-21 (鈥淚t should be noted that Rule 7.3 does provide the lawyer with an alternative means of communication in writing with such a prospective client, providing the lawyer follows the procedures set forth in that Rule.鈥�). Although 鈥淩ule 7.3 is intended to prohibit solicitation in situations when the method of solicitation is likely to overwhelm or unduly influence the potential client[,] [m]ail solicitation normally does not present the same risks for abuse as live, in-person solicitation.鈥� Ethics Adv. Op. No. 90-37. Moreover, the South Carolina Rules of Professional Conduct provide additional protections for written communications being sent specifically to a prospective client, who is known to be in need of legal services. See, e.g., Ethics Adv. Op. No. 97-05 (stating Rule 7.1(a) provides every communication made by an attorney must not be false or misleading; Rule 7.3(b) prohibits mail solicitations being sent to a prospective client, who has advised the attorney the prospective client does not want to be solicited, or the solicitation involves coercion, duress, or harassment; Rule 7.3(c) sets forth specific disclaimer information that must be contained in any mail solicitation sent to a prospective client, who is known to be in need of legal services).
Thus, in the current situation, the attorney may make written contact with Prospective Client to determine whether legal services are still required, so long as the written communication conforms to the applicable rules.