ABA Formal Opinion on soliciting business serves to remind of the importance of training non-lawyer staff.

Earlier this week, the ABA Standing Committee on Ethics and Professional Responsibility released Formal Opinion 501.  The opinion is titled “Solicitation” and addresses a lawyer’s duties under Model Rule 7.3.  Generally, the rule prohibits certain types of live, person-to-person solicitation of legal services for “pecuniary gain.”  Vermont’s version is Rule 7.3 – Direct Contact with Prospective Clients.

Since I started fielding inquiries in 2012, I’ve received fewer than five related to the direct solicitation of clients. Over the same period, I don’t recall screening a single complaint alleging a violation of V.R.Pr.C. 7.3.  So, this post won’t focus on solicitation.  Still, for anyone interested in the ABA’s view of what does (and does not) constitute impermissible solicitation, the opinion includes four hypos that I’ve added at the end of this post.  The answers are in the opinion itself.

Instead, I post today to highlight a message in the opinion that is sound advice no matter the specific rule that we’re discussing.  The message, in short, make sure that those around you aren’t doing something that would violate the rules if you did it yourself.

On the topic of solicitation, the opinion reminds lawyers that it is not uncommon to receive client referrals from both non-lawyer employees and third parties not employed by the lawyer.  Thus, the opinion reminds lawyers to their obligations under Model Rules 8.4(a) and 5.3.  The former makes it professional misconduct to violate the rules through the act of another, while the latter requires a lawyer to make reasonable efforts to ensure that the conduct of non-lawyer assistants is compatible with the lawyer’s professional misconduct.

Two lines in the opinion jumped out at me.  They’re in the section that addresses a lawyer’s duty to ensure that non-lawyer employees act compatibly with the lawyer’s obligations.  The lines are:

  • “Under Rule 5.3, a lawyer with supervisory responsibility over the nonlawyer employees must discuss the ethical rules with these employees to ensure that they understand the limitations on their conduct imposed by the fact of their employment with the law firm. Just as a supervisory lawyer must explain the ethical duty of confidentiality to employees, the supervisory lawyer must likewise explain the requirements of Rule 7.3 to refrain from improper solicitation on behalf of the lawyer.”

Again, take solicitation out of it.  In my opinion, these two lines provide an excellent reminder of the importance of regular and periodic trainings for staff.  If you will, in-house CLE for non-lawyers.

For example, a few weeks ago I did a CLE for a relatively large local firm.  Non-lawyer staff attended and participated.  I recommend this.  Also, any firm that employs a paralegal who is a member of the Vermont Paralegal Organization is fortunate.  The VPO does an outstanding job putting on trainings for its members. Having spoken at several, and with another just around the corner, I am confident that VPO members are keenly aware of their employers’ ethical obligations.

Trust accounting, conflicts of interest, confidentiality, reviewing a witness’s social media platforms.  Whatever the issue, it affects your non-lawyer staff.  Take steps to ensure that their conduct is compatible with yours.

As always, let’s be careful out there.

legal ethics

Each hypo is taken directly from ABA Formal Opinion 501.  Click on the opinion for the ABA’s opinion on each.

Hypothetical 1

A lawyer obtains a list from the local sheriff of persons arrested within the last week, calls them on the telephone, and offers to provide general legal services. None of the arrestees are lawyers. The lawyer also does not personally or professionally know, nor is lawyer related to, any of the arrestees. Does the conduct violate Rule 7.3?

Hypothetical 2

A lawyer with direct supervision over a law firm’s marketing department hires a professional lead generator to obtain client leads. The lawyer signs an agreement with the lead generator to pay a flat monthly fee for leads in mass tort cases. The agreement includes no information on how the lead generator obtains leads, nor does the lawyer provide any direction or limitation on how the lead generator does so

Hypothetical 3

A paralegal at a law firm works as a paramedic on weekends. As part of the paralegal’s employment agreement with the firm, the paralegal lists the paramedic work as outside employment. To explain away any perceived conflict, the paralegal maintains that “not only does the outside employment not conflict with law firm work, but it also contributes by bringing in new firm business.”

Hypothetical 4

A lawyer asks a personal friend and colleague who is a banker to provide the lawyer’s name and contact information to any banking customer or employee that the banker thinks might need an estate plan. Does the lawyer violate any Rules?