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 93-21
The South Carolina Bar offers its members the opportunity to pay a fee to register with the Lawyer Referral Service. At the end of each quarter, the Lawyer Referral Service sends a report to the attorney listing the names of people who were referred to the attorney. Upon examining the listing, a lawyer who is a member of the Lawyer Referral Service observes that over 50% of the people listed have not made contact with him. The reason is unknown.
Question:
Would it be unethical for the attorney receiving this quarterly report to look the names up in the phone book and call the persons who have not contacted him for his advice/services subsequent to the referral by the Lawyer Referral Service?
Does it make any difference whether the attorney calls or whether a staff member of his office makes the call?
Summary:
It would not be proper for the attorney to initiate a call to such prospective clients who have not called his office. (It should be noted that the list of names includes neither telephone numbers nor addresses and sometimes only one name of the caller is listed, such as "Danny" or "Mr. West".)
Opinion:
When a person calls the Lawyer Referral Service, the caller is given the name and telephone number of a lawyer from its lists. The caller is instructed to contact the attorney as soon as possible to make an appointment and is informed of the fee he will be required to pay. In its quarterly reports, the Service warns the participating lawyers that the callers do not always give their correct names.
Rule 7.3(a) states as follows: "A lawyer shall not by in-person or live telephone contact solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship...." When a person has been given a lawyer's name and telephone number by a third person and has failed to call the lawyer to make an appointment, it is clear that no professional relationship exists between that person and the lawyer and it would therefore be a violation of Rule 7.3 for the lawyer to initiate a contact with that person by telephone.
The reasons why such callers have failed to contact the attorney are manifold: they may not wish to pay the fee involved; they may not want that particular lawyer; they may have changed their mind or may be keeping the lawyer's name for future use; they may have been calling for a friend. Whatever the reason, significant embarrassment and even harm could be caused to such a caller by receiving an unsolicited call from the lawyer. Moreover, in most cases the name of the caller by itself is insufficient to clearly identify the caller and the lawyer could easily call the wrong person.
The rationale for the prohibition of unsolicited telephone calls is set forth in the comment to Rule 7.3: "There is a potential for abuse inherent in direct in-person or live telephone contact by a lawyer with a prospective client known to need legal services. These forms of contact between a lawyer and a prospective client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter." It should be noted that Rule 7.3 does provide the lawyer with an alternative means of communicating in writing with such a prospective client, providing the lawyer follows the procedures set forth in that Rule.