By Mallory H. Chase
Although nonlawyers are not directly governed by the California Rules of Professional Conduct (see CRPC, rule 1.0(a) [the “rules are intended to regulate professional conduct of lawyers through discipline”] [emphasis added]), rule 8.4 provides that it is professional misconduct for a lawyer to “violate these rules or the State Bar Act, knowingly* assist, solicit, or induce another to do so, or do so through the acts of another[.]”[1] (CRPC, rule 8.4(a).) Additionally, under CRPC, rule 5.3, managerial and supervisory lawyers must make reasonable efforts to ensure the conduct of nonlawyers who are employed by, retained by, or associated with the lawyer is compatible with lawyer’s professional obligations. Among those professional obligations is the prohibition on certain types of solicitations, as delineated in CRPC, rule 7.3.[2]
To what extent then is a lawyer held responsible for the information, recommendations, or referrals extended to potential legal consumers by non-attorneys?
That question was recently addressed by the American Bar Association Standing Committee on Ethics and Professional Responsibility, which publishes ethics opinions applying the Model Rules of Professional Conduct to hypothetical situations, in Formal Opinion 501. The Opinion cautions that Model Rules 8.4(a) and 5.3 “extend a lawyer’s responsibility for solicitation prohibitions” under Model Rule 7.3 “not only to actions carried out by the lawyer directly but also to the acts of persons employed by, retained by, or associated with the lawyer under certain circumstances.” While the CRPC deviates in certain respects from the Model Rules, the CRPC instructs that “[e]thics opinions and rules and standard promulgated by other jurisdictions and bar associations may also be considered” for guidance on proper professional conduct. (CRPC, rule 1.0, Comment [4].)
Under Model Rule 7.3, solicitation is defined as “a communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.” (ABA Model Rules, rule 7.3(a).) Subject to delineated exceptions, Model Rule 7.3 directs, “A lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain[.]” (ABA Model Rules, rule 7.3(b).)
Under Model Rule 8.4(a), a lawyer cannot “violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.” Reasoning that Model Rule 8.4(a) does not impose responsibility on a lawyer who has no knowledge of someone else’s actions, the Opinion reasons that for a lawyer to be culpable for the purpose of another’s solicitation, the lawyer must knowingly permit, ask, direct, or encourage someone to solicit on the lawyer’s behalf.
Model Rule 5.3(b) requires lawyers with direct supervisory authority over a non-attorney whom the lawyer employs, retains, or is associated with to make reasonable efforts to ensure that the non-attorney’s conduct is compatible with the professional obligations of the lawyer. If a lawyer knows of specific unethical conduct by such a non-attorney and either directed that conduct, ratifies the conduct after the fact, or fails to take reasonable remedial measures after the fact, the lawyer violates Model Rule 5.3(c). The Opinion reasons that under Model Rule 5.3, a lawyer with supervisory responsibility over non-attorneys must explain the requirements of Model Rule 7.3 to refrain from improper solicitation on behalf of the lawyer.
As the Opinion notes, however, “what constitutes a prohibited ‘solicitation’ on behalf of the lawyer versus merely making a recommendation about the lawyer can be complicated.” The Opinion goes on to discuss several hypothetical solicitation scenarios to provide guidance to lawyers in determining what activities are permissible.
Two hypotheticals involve non-attorneys with a contractual relationship with a lawyer – one as a leads generator contracted for marketing purposes and another as a paralegal employed by the firm – who by phone or in person contact individuals for the purpose of soliciting new clients for the lawyer. In both hypotheticals, while the lawyer is initially unaware of the means utilized by the leads generator and the paralegal to bring in new clients, when the lawyer ultimately learns of the direct telephone and in-person contact the lawyer nonetheless accepts the representations and encourages the non-attorneys to continue generating new business.
In both scenarios, the Opinion finds that the lawyer’s conduct violated the Model Rules. First, the Opinion finds that the live, person-to-person communication to prospective clients were made for the lawyer’s pecuniary gain, and therefore were prohibited solicitations under Model Rule 7.3. By proceeding to accept the new clients while knowing they were obtained in contravention of Model Rule 7.3, the Opinion finds that the lawyer is responsible for the non-attorneys’ conduct under Model Rules 7.3(b) and 8.4(a). The Opinion further finds that the lawyer violated Model Rule 5.3 by failing to train the non-attorneys on the limitations on direct solicitation contained in Model Rule 7.3, and by ratifying the non-attorneys’ conduct by accepting the improperly obtained new representations and encouraging the non-attorneys to continue bringing in new firm business.
By contrast, the Opinion discusses a hypothetical in which a lawyer asks a personal friend who is employed at a bank to provide the lawyer’s name and contact information to any customers or fellow employees that might be in need of legal services. Under such circumstances, the Opinion concludes that the lawyer’s conduct does not violate Model Rule 7.3, because the action taken is not a “solicitation” as defined under the rule – the lawyer did not target any specific person and has no authority over the banker’s conduct, and the banker’s communication with bank customers should not reasonably be construed as an offer to provide legal services since the banker is not authorized to make that offer on behalf of the lawyer. Should any such communication occur, it would be a mere recommendation, which is permissible under Model Rule 7.3.
In conclusion, as set forth in the Opinion, the prohibition on improper solicitation under the Model Rules applies not only to actions carried out by a lawyer directly but also to persons employed by, retained by, or associated with the lawyer under certain circumstances. Satisfied clients or third parties not employed by the lawyer, however, are free to share with others their opinions and recommendations about the lawyer, even where the lawyer requests such appropriate communication by clients and others. For any lawyer seeking to generate new client contacts, the Opinion provides useful guidance to avoid responsibility for prohibited solicitation in violation of the lawyer’s professional obligations.
[1] An asterisk (*) identifies a word or phrase defined in the terminology rule, rule 1.0.1.
[2] Pertinent here, CRPC rule 7.3(a) provides, “A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment when a significant motive for doing so is the lawyer’s pecuniary gain, unless the person* contacted: [¶] (1) is a lawyer; or [¶] (2) has a family, close personal, or prior professional relationship with the lawyer.”