MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2004-27
Is it permissible for an attorney to hire a marketing company to subsequently contact persons who received and did not respond to a mailed advertisement for the attorney's services?
The question posed in your letter asks if it is permissible for a marketing firm, acting on behalf of an attorney, to initiate follow-up contact with recipients of a mailing who did not respond to the mailing.
If the marketing firm acts as the attorney's agent, then the acts of the marketing firm are the acts of the attorney. The attorney then must ensure that the marketing firm takes no action that would violate the professional rules.
Any such conduct taken on behalf of the attorney would be governed by Rule 5.3, as well as Rule 7.3, of the Maryland Rules of Professional Conduct, which govern communications concerning a lawyer's responsibilities regarding nonlawyer assistants and advertising a lawyer's services, respectively. As noted in Ethics Docket 98-30, it is immaterial if the communication is initiated by the lawyer or by the person working along with the lawyer Asince Rule 5.3(c) provides that >[w]ith respect to a nonlawyer ... associated with a lawyer[,] ... a lawyer shall be responsible for conduct of such person that would be a violation of the rules of professional conduct if engaged in by a lawyer if ... the lawyer ... ratifies the conduct involved.=@ Because of this, the marketing firm cannot, on behalf of the lawyer, do that which the Rules prohibit the lawyer from doing himself.
Rule 7.3 sets out prohibitions for both direct mailing communications and in person contact and establishes the only instances in which in person communications to potential clients for the purpose of obtaining employment are permissible.
First, with regard to a subsequent mailing, Rule 7.3 (b) prohibits contacting or sending a communication to a prospective client for the purposes 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.
Because people often do not respond to mail for numerous reasons, it does not seem that mailing a second letter or brochure would be a violation of 7.3 (b) (2) since simply ignoring a piece of mail is not necessarily indicative of a desire to not receive any more communications. However, given that Rule 7.3 is meant to prohibit and protect against harassment and overreaching, repeated mailings to potential clients would violate the policy behind these protections and, thus, run afoul of the Rule.
If the follow-up contact with the potential client is via a telephone call, such contact is prohibited. In Ethics Docket 95-10, this Committee earlier determined that a telephone call is in person contact. Rule 7.3 (a) clearly sets out the only circumstances in which an attorney can initiate in person contact with a potential client for the purposes of obtaining professional employment. The allowable circumstances are:
(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.
Even if one of these situations exists, however, which in this instance does not appear to be the case, any in person contact must not run afoul of the prohibitions set forth in Rule 7.3 (b) above.
REFERENCES:
Rule 5.3 and Rule 7.3
Ethics Opinions: Ethics Docket 95-10, 96-26 and 98-30