In April the ABA’s Standing Committee on Ethics and Professional Responsibility issued a new advisory opinion– Formal Opinion 501. The Opinion addresses impermissible client solicitation by a lawyer and by others acting on a lawyer’s behalf under ABA Model Rule of Professional Conduct 7.3.

The ABA Committee recognized that there are many individuals who may solicit business for a lawyer, including current employees, marketing firms, current and former clients, professional colleagues and friends and family members of the lawyer. Not all of those communications fall within the definition of a “solicitation.” 

ABA Model Rule 7.3, as amended in 2018, defines “solicitation” as follows:

• “Solicitation” or “solicit” denotes a communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.

See, ABA Model Rule 7.3(a). Under this definition, a recommendation to hire a lawyer made by an employee or contractor hired to develop client leads for the lawyer directed to a specific person with a known legal need is a prohibited “solicitation.” 

The Opinion goes on to point out that a lawyer whose employee or contractor engages in such conduct will be held responsible under ABA Model Rule 5.3 if the lawyer failed to train the employee or contractor about the requirements of 7.3.  The lawyer will also be responsible under both ABA Model Rule 5.3 and 8.4 if the lawyer knows of the unethical solicitation and ratifies it by accepting the work generated by the solicitation.

Although it is impermissible solicitation for a lawyer’s employee or contractor to recommend the lawyer’s services to a specific person with a legal need, it is not impermissible solicitation if the recommendation comes from a colleague, family member, or friend of the lawyer. The circumstances are distinguishable because the lawyer does not have authority over these other third parties and does not control the content of the communication or direct it to a specific person. These individuals also do not have authority to offer the lawyer’s services. The recommendations are considered word-of-mouth referrals that are permissible under Rule 7.3.

The current application of this ABA Advisory Opinion to Ohio lawyers is uncertain due to differences between ABA Model Rule 7.3 and Ohio Prof.Cond.R. 7.3. The ABA amended Model Rule 7.3 in 2018 to include within the text of the rule the definition of “solicitation” cited above. Ohio did not adopt these amendments. Ohio’s Prof.Cond.R. 7.3 defines “solicitation” in Comment [1]. The definition refers only to communications initiated by the lawyer.

A proposal to amend Ohio’s Prof.Cond.R. 7.3 is currently under consideration by the OSBA. The proposed version of Prof.Cond.R. 7.3 would adopt the ABA Model Rule’s definition of “solicitation.” If the Court amends the Ohio rule as proposed, the ABA’s analysis in this Opinion will apply. The provisions in Model Rules 5.3 and 8.4 relied upon by the Committee are consistent with Ohio’s Prof.Cond.R. 5.3 and 8.4.

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