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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1988-48
Advertising Solicitation: Mail Solicitation to Organization Regarding Representation of Organization Members
In your letter dated November 3, 1987, you state the following. Your firm and its predecessor firms have represented a fraternal organization (the ""Lodge"") for approximately 20 years. The firm is currently working under a retainer agreement to providethe Lodge with a full range of legal services. In a subsequent telephone conversation, you have advised that under the terms of the agreement the firm provides legal services to the Lodge's Board of Directors as well as its members. Recently, AttorneyA sent a letter to the president of the Lodge concerning the possibility of his providing the Lodge with legal services. You provided the Committee with a copy of Attorney A's letter. In that letter, Attorney A describes his relevant employment historyand refers to the amounts of two jury verdicts his firm won last year. In addition, he refers to facilities he owns which could be used as a location for providing legal services to the Lodge. He also suggests a possible meeting to discuss his firm'sprovision of legal services to Lodge members.
In your letter you state that in addition to his letter to your client, you have been advised that Attorney A approached a member of the Lodge's Board of Directors to inquire as to the possibility of representing the Lodge. You request the Committee's opinion as to whether Attorney A's actions violated the rules governing attorney conduct.
Rules 7.1 and 7.3 of the Maryland Rules of Professional Conduct are relevant to your inquiry. Rule 7.1 provides in part:
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it:
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(b) is likely to create an unjustified expectation about the results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the rules of professional conduct or the law;
The commentary to that provision notes that the prohibition in paragraph (b)
""would ordinarily preclude advertisements about results obtained on behalf of a client, such as the amount of a damage award or the lawyer's record in obtaining favorable verdicts * * * *""
Attorney A states that he is citing the amounts of jury verdicts his firm won ""solely for the purpose of giving you some barometer by which to judge our abilities."" However, such information without further explication is not necessarily a measure of competency, and may create an unjustified expectation of results which Rule 7.1(b) seeks to prevent. Therefore, the Committee has concluded that although the written communication to the Lodge soliciting its legal work did not violate any ethical rules per se, the statement regarding the amounts of verdicts won would appear to violate Rule 7.1(b).
The question of in-person contact raises another issue. Maryland Rule 7.3 outlines the circumstances in which in-person contact may be initiated with prospective clients. It provides:
(a) A lawyer may initiate in person contact with a prospective client for the purpose of obtaining professional employment only in the following circumstances and subject to the requirements of paragraph (b):
(1) if the prospective client is a close friend, relative, former client or one whom the lawyer reasonably believes to be a client;
(2) under the auspices of a public or charitable legal services organization; or
(3) under the auspices of a bona fide political, social, civic, fraternal, employee or trade association whose purposes include but are not limited to providing or recommending legal services, if the legal services are related to the principal purposes of the organization.""
(b) A lawyer shall not contact, or send a communication to, a prospective client for the purpose of obtaining professional employment if:
(1) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer;
(2) the person has made known to the lawyer a desire not to receive communications from the lawyer; or
(3) the communication involves coercion, duress or harassment.
The commentary to Rule 7.3 indicates that the limitations on in-person solicitation for the purpose of securing employment as a lawyer are intended to prevent such social harms as harassment and over-reaching while not interfering with constitutional rights. Therefore, the circumstances described in Rule 7.1(a) in which in-person contact is permitted, must be viewed with that perspective.
It is presumed that harassment and over-reaching and the like are less likely to occur in situations in which there is a prior familial or professional relationship.
Therefore, the rule permits in-person solicitation in such circumstances. Further, the free association clause of the First Amendment protects solicitation of individuals in need of legal services who are served by legal service programs sponsored by organizations. See, e.g., United Transportation Union v. State Bar, 401 U.S. 576 (1971); United Brotherhood of Railroad Trainmen v. Virginia State Bar, 377 U.S. 1 (1964). Accordingly, in-person solicitation by such programs is protected by Rule 7.3. See generally, American Bar Association, Annotated Model Rules of Professional Conduct, pp. 320-324. Each of these exceptions, however, is subject to the time and circumstances limitations of paragraph (b) of the rule.
Nevertheless, Rule 7.3 only applies to in-person contact directly with a prospective client. If an attorney contacts a representative of an organization for the purpose of informing the organization of the services the lawyer's firm is willing to offer, such communication is generally directed to a fiduciary for the organization not directly to a specific person in need of legal services. Therefore, it would fall outside the restrictions of Rule 7.3. If that was the nature of Attorney A's alleged in-person contact with a member of the Lodge's Board of Directors it would not appear to violate Rule 7.3. However, if the alleged in-person contact concerned direct representation of the Board of Directors, particularly at a time when the Board was the object of litigation, such in-person solicitation could violate Rule 7.3.
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