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

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.
88-F-114 Page 2
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