Following is the 60th post in a series from Parker Taylor Law Group about recent changes to the California Bar Association (CBA)’s Rules of Professional Conduct (RPC). This rule is found in Chapter 7 – “Information About Legal Services,” focusing on the forms of solicitation an attorney may use when seeking new clients.
This Rule of Professional Conduct, as revised, is as follows:
Rule 7.3 Solicitation of Clients
(a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment when a significant motive for 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.
(b) A lawyer shall not solicit professional employment by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if:
(1) the person being solicited has made known to the lawyer a desire not to be solicited by the lawyer; or
(2) the solicitation is transmitted in any manner which involves intrusion, coercion, duress or harassment.
(c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from any person known to be in need of legal services in a particular matter shall include the word “Advertisement” or words of similar import on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2), or unless it is apparent from the context that the communication is an advertisement.
(d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person, live telephone or real-time electronic contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.
(e) As used in this rule, the terms “solicitation” and “solicit” refer to an oral or written targeted communication initiated by or on behalf of the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services.
Rule 7.3 of the CBA’s revised RPC, as set forth above, has several pieces of information not found in the State Bar’s previous version of this rule (Rule 1-400). The only portion of the new rule that mirrors at least part of the previous rule is subdivision (a)(2), which corresponds to subd. (C) in the old rule. The previous rule said:
Rule 1-400(C)
A solicitation shall not be made by or on behalf of a member or law firm to a prospective client with whom the member or law firm has no family or prior professional relationship, unless the solicitation is protected from abridgment by the Constitution of the United States or by the Constitution of the State of California. A solicitation to a former or present client in the discharge of a member’s or law firm’s professional duties is not prohibited.
The similarity between this wording and the wording found in subd. (a)(2) of the new rule lies in permission being given for soliciting employment if the person being contacted has a family, close personal, or prior professional relationship with the lawyer.
Most of the information in Rule 7.3 of the American Bar Association (ABA)’s Model RPC can also be found in Rule 7.3 of the CBA’s revised RPC, although not in the same order. Subd. (a) in the ABA’s rule closely matches subd. (e) of CBA’s new rule, defining the terms “solicitation” and “solicit.” Subd. (b) of ABA’s rule matches subd. (a) in the CBA rule, except for the third sub-subdivision, which isn’t part of CBA’s rule. The third condition allowing an attorney to solicit someone as a potential new client is if that person is one who “routinely uses for business purposes the type of legal services offered by the lawyer.”
Rule 7.3(c)(1)-(2) in the ABA’s rule matches the CBA’s Rule 7.3(b)(1)-(2), and subd. (e) in ABA’s rule corresponds to CBA’s subd. (d) for this rule. The only subdivision in CBA’s rule that does NOT appear in ABA’s rule is (d): “This Rule does not prohibit communications authorized by law or ordered by a court or other tribunal.” A major difference between the two rules is the inclusion of verbiage about the need to include the word “Advertisement” (or something similar) on the outside of any envelope or at the start and end of any electronic communication … unless the context of the piece makes it clear that the communication is an advertisement.
Potential Benefit: Having a rule that specifically targets the issues surrounding “solicitation” as it relates to attorneys seeking new clients can, generally speaking, help attorneys avoid possible issues involving a breach of professional ethics.
The information provided herein is informational only and should not be construed as legal advice or as an agreement for representation. This is not an advertisement. If you have an issue or dispute with your attorney, or are seeking advice with respect to your obligations, you should consult with an experienced attorney. Parker Taylor Law Group is a full-service litigation and transactional law firm. Mr. Parker has represented clients in professional malfeasance disputes for over 23 years. If you would like to schedule an initial consultation with Mr. Parker or his team, you can reach them at (916) 996-0400 or at contact@parlawgroup.com. (An email to the law firm requesting a consultation does not create an attorney-client relationship or any agreement for representation by the firm.)
Rules of Professional Conduct, California Bar Association, American Bar Association, Legal Malpractice, Legal Advertising, Breach of Ethics, Client Rights, Parker Taylor Law Group, Port Parker