MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1990-34
Ask-A-Lawyer Day
You indicated that your law firm is interested in advertising and conducting a day of free legal consultations, comparable to the "ask-a-lawyer tm" event promoted by the Maryland State Bar Association on Law Day. As indicated by your letter, individuals in other professions, such as accountants and real estate brokers, would also participate in this program, which would be touted as "one-stop shopping" for businesses. As your letter indicates, one purpose of the program would be to increase the visibility of your firm in the community. You have inquired whether the program you propose would violate the Maryland Rules of Professional Conduct.
The Committee believes that the program which you have proposed raises several ethical issues. The first concerns the manner in which the program would be advertised. The applicable ethical rules regarding advertising are set forth in Rules 7.1, 7.2, 7.3 and 7.4. It is the opinion of the Committee that the proposed program may be advertised if done consistently with Rules 7.1-7.4, including the accuracy requirements of 7.1(a), and the advertising requirements of 7.2. In that regard, I have attached a recent opinion of the Committee, Ethics docket 90-40, reviewing the advertising and solicitation rules.
The second ethical issue concerns the manner in which the program, itself, is conducted. Rule 7.3(a) of the Rules of Professional Conduct provides those circumstances in which a lawyer may initiate in person contact with a prospective client in order to obtain professional employment. It states:
(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 organization 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.
Assuming that invitation to your proposed program is not limited to those individuals identified in 7.3(a)(l), it is the opinion of the Committee that you may not solicit clients at the program. The comment to Rule 7.3 indicates that the Rule is designed to prevent social harms resulting from solicitation which include "harassment, overreaching, provocation of nuisance litigation and schemes from systematic fabrication of claims." Solicitation occurs when an attorney initiates personal contact with a potential client with whom the attorney had no previous relationship, for the purpose of pecuniary gain. Beyond those statements directly soliciting employment from a potential client, it would be impossible for the Committee to provide you with a definitive statement as to which actions would, or would not, involve solicitation. Whether solicitation occurs will depend on the factual context of each case.
With regard to the program which you propose, you should also be familiar with Rule 7.3(b), which provides:
(b) A lawyer shall not contact, or send a communication to, a prospective client for the purpose of obtaining professional employment
(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.
You must ensure that no communication to a prospective client occurs which falls within any of the three subsections of Rule 7.3(b).
Other ethical issues are presented by your firm's contemplated program. Unless your firm is prepared, at the program, to screen any potential conflict-of-interest, care should be taken that no attorney-client relationship is established with any participant. See Rules 1.7 to 1.10. If free consultations are mentioned as a portion of the solicitation, you must insure, subsequent to screening potential conflicts, that free consultations are provided upon request. See Rule 7.1.
Finally, your firm's arrangements with the other professionals involved in the program must not violate Rule 7.2(c), which provides that a lawyer shall not give anything of value to a person for recommending the lawyer's services. It is the opinion of the Committee that any cross-referral agreements between your law firm and any other professionals involved in the program would violate this section.
References, Rules 1.7 - 1.10, 7.1, 7.2, 7.3, and 7.4