Opinion 2193

BACKGROUND

The inquiring attorney has an immigration practice and raises a question regarding lawyer marketing regulations. Because his inquiry is relatively succinct, it follows for the Committee’s convenience:

“Approximately 70% of my clientele is Hispanic. I am considering preparing flyers or brochures (in Spanish) that say who I am, what I do and that I am available to accept clients who have immigration matters. My plan would be to have a teenager or teenagers (approximately 16 years-old) distribute these flyers or brochures door-to-door in largely Hispanic neighborhoods.

“I have read the RPC’s, specifically RPC 7.2 Advertising and RPC 7.3 Soliciting. The RPC’s do not seem to speak to my fact situation. The closest the RPC’s come to my proposed course of conduct involves the rules and cases that prohibit ‘direct, in person, face-to-face contact between the lawyer or the lawyer’s agent or representative’ and the prospective client.

“To avoid the prohibited conduct I personally will do no flyer/brochure distribution. The individual or individuals who I would have distribute the materials on the people’s doorsteps would be adolescents who have little or no knowledge of me, my practice or immigration law. They will be directed to merely place the flyers/brochures on the doorsteps of the residents, not to ring the door bells and not to speak with individuals with whom they may come into contact while they are walking from house to house in the various neighborhoods.

“It seems to me that this method of advertising does not [emphasis in original] violate the RPC’s and is, in essence, no different than a yellow page ad in the phone book, brochures of an attorney sitting on the counter in a Mexican restaurant or, most similarly, a direct mail advertisement—all of which I understand are permissible forms of advertising.

“Can I do what I propose to do?”

DISCUSSION

RPC 7.3 governs direct contact with prospective clients and provides, in relevant part:

“(a) A lawyer shall not directly or through a third person, 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;

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

“(3) has consented to the contact by requesting a referral from a not-for-profit lawyer referral service.

“(b) A lawyer shall not solicit professional employment from a prospective client 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 prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or

“(2) the solicitation involves coercion, duress or harassment.”

Comment 1 to RPC 7.3 notes the purpose of these restrictions:

“There is a potential for abuse inherent in direct in-person, live telephone or real-time electronic contact by a lawyer with a prospective client known to need legal services. These forms of contact between a lawyer and a prospective client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter. The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer’s presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and over-reaching.”

Comment 12, in turn, emphasizes that the restrictions apply both to lawyers and to those acting on a lawyer’s behalf:

“The phrase ‘directly or through a third person’ in paragraph (a) was retained from former Washington RPC 7.3(a).” See also RPC 5.3 (lawyer responsibility for nonlawyer assistants).

RPC 7.3 and its comments generally reflect the accompanying constitutional restrictions on coercive in-person solicitation recognized by the United States Supreme Court in Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 454-68, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978), and by the Washington Supreme Court in Hahn v. Boeing Co., 95 Wn.2d 28, 35 n.2, 621 P.2d 1263 (1980).

Prior opinions of this Committee have dealt with closely related issues on several occasions under the former version of RPC 7.3 that for present purposes was substantively similar to the current rule adopted in 2006.

Informal Opinion 1985 (2002) found that offering brochures to persons with whom a lawyer has no pre-existing relationship (a) leaving a courthouse (b) at a local fair or event venue or (c) entering a courthouse would all violate RPC 7.3 “if it entails direct, in person, face-to-face contact between the lawyer or the lawyer’s agent or representative.”

Informal Opinions 1877 (1999), 1762 (1997) and 1212 (1988), by contrast, found that leaving brochures in, respectively, a chiropractor’s office, an auto repair shop and a physician’s reception area would all be permitted under RPC 7.3 because they did not involve direct in-person solicitation.

COMMITTEE RESPONSE

In the context posed by the inquiring attorney, simply leaving a brochure on a front porch or in a newspaper or mail box would not, in and of itself, violate RPC 7.3. But, any direct in-person contact by either the attorney or his agents would.

Our conclusion is limited strictly to the facts presented.

Further, because we were not presented with any specific description of the content of the brochures, we reach no conclusions regarding whether the content complies with the requirements of RPCs 7.1 (truthfulness in all marketing communications) and 7.2 (additional requirements concerning advertising).