Ethics Hotline & Opinions

ETHICS DOCKET NO. 2006-12

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 2006-12

Whether anonymous marketing telephone inquiry followed up with a direct mail solicitation is permissible ethical conduct.


Your letter requesting an opinion of the Ethics Committee of the Maryland State Bar Association has been considered by the Committee, and I have been designated to respond to you on its behalf.

You ask whether a particular solicitation plan would violate the Maryland Lawyers’ Rules of Professional Conduct. Your inquiry states that you retained a marketing company to conduct research for you with respect to drafting sales commission agreements for companies. You continue that the company recommended that you target certain Maryland companies with revenues between 5-20 million dollars.

You explain that either you or an employee would make initial telephone contacts with prospects and pose a series of questions regarding legal services. Parenthetically you add that you would not advise that you were calling from a law firm and that you would not ask if the prospect needs a consultation. You would then follow up with a direct mailing.

This Committee has addressed the issues of advertising and direct contact with prospective clients on numerous occasions. See Ethics opinions 2004-27, 98-24, 95-10, 94-35, 91-6, 88-61.

Rule 7.3 (a) of the MLRPC governs a lawyer’s contact with prospective clients. It states:

A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted:

(1) is a lawyer; or

(2) has a family, close personal; or prior professional relationship with the lawyer.

The Committee believes that your intention to directly contact prospective clients by telephone would be a violation of the Rules.

Your parenthetical, in which you state that you do not identify yourself as an attorney calling from a law firm, implies that you would be less than candid about the nature of your contact with prospective clients. The Committee reminds you of Rule 7.1, which requires truthfulness in any communication regarding your services.

For members of the Maryland State Bar Association, opinions of the Committee may be obtained from the Committee’s website: www.msba.org.

We hope the foregoing is responsive to your inquiry and we thank you for consulting the Committee on this matter.

REFERENCES: Rule 7.3 (a) and 7.1

Ethics opinions 2004-27, 98-24, 95-10, 94-35, 91-6, 88-61.


DISCLAIMER: Opinions of the Maryland State Bar Association (MSBA) Ethics Committee are an uncompensated service of the MSBA. This Committee’s opinions are not binding on the Maryland Court of Appeals, Maryland Attorney Grievance Commission, MSBA or this Committee. The reader is advised that subsequent judicial opinions, revisions to the rules of professional conduct, and future opinions of this Committee may render the Opinions stated herein outdated. As such, the Committee’s opinions are advisory only and neither the Committee nor the MSBA assumes any liability whatsoever with respect thereto. Accordingly, reliance upon the opinions of this Committee is solely at the risk of the user.