MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2012-04
Solicitation of Potential Clients From Public Lists
The question has been posed as to whether the Maryland Rules of Professional Conduct (MRPC) permit an attorney to use information from public records for marketing purposes, including contacting potential clients. The issue for this Committee to decide is whether the Rules of Professional Conduct permit an attorney to use information from public records such as police reports or the Maryland Judiciary’s Case Search system, for marketing purposes, including contacting potential clients, so long as they are within the provisions of Rule 7.3.
Under Rule 7.3 of Maryland Rules of Professional Conduct, “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.” MD R CTS J AND ATTYS Rule 16-812, MRPC 7.3. Under this rule, a lawyer may initiate in person contact with a prospective client for the purpose of obtaining professional employment only in the proscribed circumstances and subject to the requirements regarding the prohibition against false or misleading communication set forth in the Rules. Rules. 3 M.L.E. Attorney and Client § 22.
Rule 7.3 has two aspects: paragraph (a) permits in person contacts under limited conditions and of a specified category of persons, while paragraph (b) sets out the circumstances in which in person solicitation is proscribed. The comments to Rule 7.3 state that, under paragraph (a), “there is far less likelihood that a lawyer would engage in abusive practices against an individual who is a former client, or with whom the lawyer has a close personal or family relationship, or in situations in which the lawyer is motivated by considerations other than the lawyer’s pecuniary gain. Nor is there a serious potential for abuse when the person contacted is a lawyer. For the purposes of this opinion it is assumed these relationships do not exist.
Turning next to Rule 7.3(b), it is relevant to consider that “in determining whether a contact is permissible under this rule, it must be asked “whether 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,” Rule 7.3(b)(1) or whether “the communication involves…harassment,” Rule 7.3(b)(3).
The Maryland State Bar Association, Committee on Ethics (the Committee) has in the past opined that lawyers may send solicitation letters to persons whose names appear on a public list, such as a list of newly filed foreclosures. See Ethics Docket 88-19. In this opinion, the Committee advises that advises that the “names of defendants in lawsuits become publicly available when cases are filed at court. Therefore, if a name appears in a list of defendants, the use of that list for sending solicitations would not violate any of the Maryland Rules of Professional Conduct.” Id.
It is assumed for the purposes of this opinion that the subject has not “made known to the lawyer a desire not to receive communications from the lawyer,” Rule 7.3(b)(2), and that the contact does not involve “coercion or duress,” Rule 7.3(b)(3). Therefore, in determining whether a contact is permissible under Rule 7.3(b), it is relevant to consider the time and circumstances under which the contact is initiated. MRPC R. 7.3. As a general proposition, “because defendants’ names in lawsuits become publicly available when suits are filed, the use of such a list of defendant’s names for the purpose of sending solicitations would not violate the Maryland Rules of Professional Conduct.” See Ethics Docket 92-43. In the specific case of foreclosure advertisements, lawyers are not automatically prohibited from sending solicitation letters to persons whose names appear on a public list of newly filed foreclosures. Whether such solicitations are prohibited by Rule 7.3(b)(1) “is a factual determination which the individual lawyer will have to make when considering direct mail announcements.” See Ethics Docket 88-19.
An additional tangent is whether the Rules allow for a lawyer to communicate in writing with a person who has been publically charged with a crime for the purpose of seeking to represent that person. The issue as to whether these direct mail solicitations violate the Maryland Rules of Professional Conduct has been addressed many times by the Committee, and we have consistently held that such direct mail solicitations are not prohibited by the rules, as long as the applicable provisions of the rules are followed. See Committee opinions 85-20; 88-16; 88-57; 89-20; 93-27; and 94-35. Therefore, the Committee believes that the applicability of these rules must be determined on a case by case basis by the attorney seeking to solicit the prospective clients. So long as the attorney does not violate any of these provisions set forth by the Rules, the solicitation by written communication, at any time after the charging document is filed, to a prospective client facing criminal prosecution, or a prosecution of a traffic offense that carries a period of incarceration, does not violate the Maryland Rules of Professional Conduct. See Maryland State Bar Association, Committee on Ethics, ETHICS DOCKET 92-43, Mail solicitation of defendants in civil cases. In Shapero v. Kentucky Bar Association, the Supreme Court held that a State may not, consistent with the first and Fourteenth Amendments, categorically prohibit lawyers from soliciting business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems. Shapero v. Kentucy Bar Ass’n, 486 U.S. 466 (1988),
Special circumstances arise upon the consideration of e-mails for the purposes of applying Rule 7.3. The Committee recognizes that an email may have a different effect on a recipient than regular mail that requires a lawyer to have a heightened awareness in complying with Rule 7.3(b). See Ethics Docket No. 2009-02. Thus, in that opinion, the Committee concluded that “because (a) e-mail is in writing (similar to a facsimile transmission), (b) does not represent a “live communication (unlike the chat-room discussions), and (c) the recipient can ignore the message or respond at leisure and after due reflection, [the Committee] found that e-mail is not an ‘in person’ communication under Rule 7.3(a).” Id. Because the Committee has interpreted e-mails not to constitute “real time” communications, they are interpreted and analyzed differently under this provision. Instead, the Committee notes that “in addition to the rules discussed above, the lawyer should be aware that the instantaneous nature of e-mail could raise issues regarding Rules 7.3(b)(1) and (b)(3),which prohibit direct solicitation to those who are in such a state that they cannot exercise reasonable judgment in employing a lawyer and solicitations which involve coercion, duress, or harassment.” Id. Therefore, an attorney who chooses to send e-mail solicitations is permitted to do so, so long as his or her acts fall within the provisions of Rule 7.3(b)(1) and (b)(3).
The Committee has not opined on solicitations through the use of hospital reports, but as long as they are public records, and the solicitations are in accord with the provisions set forth in the rule, they will not be prohibited. There are more narrow instances where the Committee has found that action of an attorney is a violation of the rules1. However, applicability of these rules must be determined on a case by case basis by the attorney seeking to solicit the prospective client. Therefore, for the purposes of this inquiry, the Rules of Professional Conduct do permit an attorney to use information from public records such as police reports or the Maryland Judiciary’s Case Search system, for marketing purposes, including contacting potential clients, so long as they are within the provisions of Rule 7.3.
4842-1989-8639, v. 1
1 The Committee opined that an intention to directly contact prospective clients by telephone would be a violation of the Rules, where an attorney retained a marketing company to conduct research for his practice with respect to drafting sales commission agreements for companies. 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.)