Opinion 1979

The inquirer is the chair of a County Bar Association Lawyer Referral Service and asks whether it would be permissible under RPC 7.3(a) for an attorney to make the initial contact with a prospective client under the following circumstances: as part of the referral service interview, the caller is asked and indicates that he or she would like the attorney receiving the referral to make the initial contact. This information is included on the referral form received by the attorney. The inquiry does not explicitly state that the initial contact would be in person or by phone, but that is implied by the inquiry’s focus on RPC 7.3(a).

The inquirer states that the major reason for this proposal is “that it appears that a number of callers, particularly elderly callers and those with some types of disabilities, assume that the attorney is going to call them or give up after discovering that they need to initiate additional actions”. The inquirer further advises that “[o]ne panel member who concentrates his practice in Social Security claims indicates that in his experience many referral clients do not initiate the call after they have gone to the effort of contacting the referral service.”

As the inquiry indicates, the RPC Committee issued Informal Opinion 1956 concerning this program in 2001. Informal opinion 1956 concluded that “it is not permissible under RPC 7.3 for the participating attorneys to initiate telephone or personal contact with prospective clients who have been referred to them by a county bar association lawyer referral service”. It further states that the “attorney-client relationship does not properly exist unless and until the potential client has first made contact with the attorney”.

The committee opined:

RPC 7.3(a) precludes a lawyer from soliciting employment from a prospective client in person or by telephone, absent a family or prior professional relationship with the client, when a significant motivation is the lawyer’s pecuniary gain. The purpose of the rule is to avoid exposing the prospective client to undue pressure to retain the lawyer’s services—a risk that is more likely to arise where the prospective client is exposed to an in-person or telephone solicitation of employment.

RPC 7.3(a) contains no express exception for the circumstances outlined by your inquiry. Nor would there appear to be a sound basis for implying an exception in light of the purpose of the rule. The fact that a person seeks referral services, receives a referral, or indicates a desire to have the referred lawyer initiate contact does not amount to a decision to employ the attorney or create an attorney-client relationship. Thus, the lawyer would be contacting the prospective client to solicit employment, in much the same way that a lawyer would absent involvement of a referral service. In this important respect, the outlined circumstances pose essentially the same risk of pressure or undue influence that RPC 7.3(a) is intended to prevent. Securing permission from the prospective client for the lawyer to initiate contact does not remove such contact from the prohibition of the rule, or present circumstances sufficiently different from those considered in Informal Opinion 1956 to depart from it. Informal Opinion 1956 concluded that it is not permissible under RPC 7.3(a) for attorneys participating in lawyer referral services to initiate telephone or personal contact with prospective clients who have been referred to them.

Alternative means for the lawyer to facilitate contact by the prospective client also argue against implying an exception to RPC 7.3(a). The lawyer may send a follow-up letter to the prospective client inviting him or her to arrange for an appointment and explaining how to do so. See RPC 7.3(b). Note, however, that if the prospective client does not respond to such a mailing, his or her silence may be taken to indicate that the prospective client “desire[s] not to receive communications from the lawyer” for purposes of any subsequent correspondence. RPC 7.3(b).