Ethics Question of the Month December 2020

Walk on By

Does a law firm booth staffed by an attorney constitute solicitation?

The Situation

Attorney Lucy’s solo practice focuses on representing policyholders who have claims against insurance companies.  When her neighborhood is hit by a severe hailstorm, resulting in widespread damage to homes in the area, she sees a great opportunity to sign up new clients.  While she is aware that she cannot directly contact potential clients, she wants to let them know that she has expertise and availability to assist them in processing their claims. 

Lucy comes up with a novel idea: creating a booth that she can set up at public venues, events, and other high-traffic locations in the area to publicize her services.  She envisions a large sign asking, “Do You Have Hail Damage?” followed by contact information for her law firm.  People who approach the booth can pick up brochures that describe the firm’s services and explain how to contact her for more information.  

Lucy plans to personally staff the booth when she can, but her busy schedule will necessitate that one of her non-lawyer employees covers for her when she is unavailable.   Both Lucy and her employee will refrain from initiating conversations with passers-by but will respond to inquiries from those who approach the booth, directing those interested to contact Lucy at her office at their convenience.    

However, Lucy is concerned that she may be violating solicitation rules by setting up a booth designed to entice potential in-person clients to speak with her or her employee.

The Question

As she considers whether to move forward with her booth idea, which is most accurate?

The Correct Answer is A Of 37 Responses, 32% are correct.

  1. A 12
  2. B 9
  3. C 5
  4. D 11

The Explanation

The Committee on Professional Ethics recently raised and addressed this unusual but interesting question in Ethics Opinion No. 689.  While most attorneys know they can’t initiate contact with someone about a specific legal issue, can they go to a location where potential clients congregate nearby in the hope that they wander over and make contact? 

Rule 7.03(a) of the Texas Disciplinary Rules of Professional Conduct (TDRPC) states in part:

A lawyer shall not by in-person contact, or by regulated telephone or other electronic contact as defined in paragraph (f), seek professional employment concerning a matter arising out of a particular occurrence or event, or series of occurrences or events, from a prospective client or nonclient who has not sought the lawyer's advice regarding employment or with whom the lawyer has no family or past or present attorney-client relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain.

While the scenario in Opinion No. 689 deals with only a law firm employee staffing an information booth and not the attorney herself, the distinction is not determinative here.  Attorneys do have obligations to see that their non-lawyer employees also abide by the TDRPC. Rule 5.03(b) states:

a lawyer shall be subject to discipline for the conduct of such a person that would be a violation of these rules if engaged in by a lawyer if:

(1) the lawyer orders, encourages, or permits the conduct involved; or

(2) the lawyer:

(i) is a partner in the law firm in which the person is employed, retained by, or associated with . . . or has direct supervisory authority over such a person; and

(ii) with knowledge of such misconduct by the nonlawyer knowingly fails to take reasonable remedial action to avoid or mitigate the consequences of that person’s misconduct.

The Committee concluded that a lawyer may advertise in this fashion, including signs and brochures as well orally communicating the same information, provided that:

  • The lawyer or staff member does not initiate the conversation;
  • They respond only if additional information is requested by the prospective client;
  • The staff member is not directed to solicit clients;
  • The staff member should not be offered any financial or pay incentive tied to the number of new clients the firm obtains;
  • The lawyer takes reasonable steps to ensure that employee’s conduct complies with the lawyer’s professional obligations under the TDRPC.

The best answer is A.

Bluebook Citation

Walk on By: Ethics Question of the Month - December 2020, Texas Center for Legal Ethics (2020), from https://legalethicstexas.com/ethics-question-of-the-month/ethics-question-of-the-month-december-2020/ (last visited Jul 18, 2024)