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’S 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 90-37
Members of the Law Firm XYZ conduct seminars through for-profit educational organizations. After a seminar, the firm sends its firm brochure to attendees, advising them of the availability and nature of the law firm's services.
Question:
Is the practice of sending brochures to persons who attended the seminar ethically permissible?
Summary:
Solicitation by mail is permitted, so long as the solicitation is not misleading and complies with the disclosure requirements of Rule 7.3. It should not matter that a member of the soliciting law firm had previously spoken to the solicited person at a seminar.
Opinion:
Rule 7.3 prohibits only in-person or live telephone solicitation of persons with whom the lawyer has had no prior professional relationship. Solicitation by mail is permitted under the Rule, as long as the material is not false or misleading, contains all appropriate disclosures, and is filed with the Board of Commissioners on Grievances and Discipline as required by Rule 7.3.
Rule 7.3 is intended to prohibit solicitation only in situations when the method of solicitation is likely to overwhelm or unduly influence the potential client. Mail solicitation normally does not present the same risks for abuse as live, in-person solicitation. The fact that a lawyer previously may have spoken to individuals later solicited by mail does not seem to present any significant additional risk of overreaching, at least on the facts as described.
Under the prior Code of Professional Responsibility, which generally was far less permissive with regard to solicitation, DR 2-104(A)(2) permitted a lawyer to accept employment resulting from "participation in activities designed to educate laymen to recognize legal problems, to make intelligent selection of counsel, or to utilize available legal services" only if the program was sponsored by an organization described in DR 2-103, which did not include for-profit organizations. Similar language, however, is not included in the current Rules of Professional Conduct. Accordingly, the practice described appears to be permissible, so long as it is conducted in accordance with the regulations of Rule 7.3.