Category Archives: Lawyer conduct

Lawyer solicitation of clients — ethics vs. morality

Lawyers are businesspeople. Trial lawyers may like to help people, but we also have to make money to stay in business, just like any other business. So marketing and advertising are important. But how far can lawyers go to solicit potential clients?

Awhile back, on one of the listservs I am a member of, there was some discussion about lawyers who read newspaper articles or obituaries and send letters to victims and their families soliciting business. Or lawyers who get their hands on police accident reports and send letters to the victims. There was a lot of disgust expressed about these kinds of tactics. But is this kind of solicitation actually prohibited?

Lawyers are governed by the Rules of Professional Conduct (RPC’s) which put limitations on things like lawyer advertising and client solicitation. For example, RPC 7.3 governs contact with prospective clients and generally prohibits direct or third person solicitation, whether in person, live telephone or real time electronic contact. On the other hand, written, recorded or electronic communication is allowed unless (1) the prospective client makes it known he/she does not want the solicitation, or (2) the solicitation is coercive or harassing. (I’m paraphrasing the rule because it’s a long one.)

Why do we prohibit in person, live direct communication, but not written communication? The thinking goes, our lawyer charms are harder to resist in person and an individual may just hire the first lawyer who speaks with her, whereas with written or recorded solicitation, a potential client has the time to make a reasoned decision about which lawyer to hire. It seems a little silly because the rule assumes we as lawyers are oh so powerful and lay people are powerless to resist us. But there is some truth to underlying rationale because it’s much easier to think through a decision when you aren’t faced with someone trying to convince you to hire them.

As you may have guessed from the rule, though, sending a letter to a victim of a car crash who’s name and contact information were pulled from a publically available police report is fully within the bounds of the rule (as long as the victim hasn’t already told the lawyer she isn’t interested in that contact). I think the more important issue, however, is not whether this conduct is allowed, but whether lawyers should engage in this kind of solicitation.

We as trial lawyers already have a bad reputation as “ambulance chasers” who will do just about anything for the almighty dollar. We have this reputation, in part, because there are lawyers willing to do just about anything to get business in the door. And these kinds of tactics — soliciting accident victims out of the blue — hurts our reputation more. I would guess that receiving a letter like that for some probably just adds insult to injury for those accident victims who probably feel like their privacy has been invaded.

Yet, there are lawyers who use these tactics. And I’m guessing they use them, at least in part, because they are successful.

These kinds of discussions about what kinds of solicitations are appropriate touches on broader philosophical differences. Do lawyers have any responsibility to the profession (after their responsibilities to their clients)? Or, do lawyers have only a responsibility to themselves (after their responsibilities to their clients)? I think how lawyers answer these questions will tell you a lot about the kind of person they are.

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Filed under Ethics rules, Lawyer conduct