When You Solicit An Ethics Nerd, You Best Not Miss

If you’ve talked to me often or long enough, or sat through any recent presentation of mine involving social media, you’ve heard me complain about the state of the attorney advertising and solicitation rules. I’ve been critical rules for some time (though, perhaps, not as vocal on this blog as I have been in the real world).

Part of my frustration is that the Rules are just that outdated. Sure, they’re post-Bates at least; they recognize that attorneys may need to rely on something other than their father’s reputation and their golf club membership to make a living. And, by and large, they try to prevent what I hope we all can agree shouldn’t happen—advertising shouldn’t be false or misleading, and it shouldn’t be coercive.

But my biggest complaint (which is related to the outdatedness) has been that the Rules assume that consumers of legal services are not just naive, but that they do not understand what an “advertisement” is.

In 2018, the ABA amended some of its Model Rules, in an attempt to simplify them and bring them into the late 20th century (I said what I said). But, each state has to adopt its own changes, and by the time these modifications trickle down to states, they become outdated again. Even these Model Rule changes don’t really address social media or other technologies we called “emerging” 15 years ago.

Wisconsin’s advertising rules are still old school. They still require that written, recorded, or electronic communication soliciting someone known to be in need of legal services (think someone charged with a crime or involved in an accident) has to include the words “Advertising Material” in several places, and the advertisement needs to be filed with the OLR (which I can’t imagine they actually welcome), because of some belief that people can’t tell the difference between an ad and a commandment. The Model Rule changes just require that any such solicitation include the name and contact information of a lawyer or law firm responsible for the content (and, as always, that it not be misleading). Fine.

Still, one thing that hasn’t changed, and should not, is the prohibition against using live or real-time contact (such as phone or videoconferencing) to solicit someone known to be in need of legal services. This rule, in former and current versions of Model Rule 7.3, is aimed at the stereotypical “ambulance chasers” and Jimmy McGills who may ambush a vulnerable potential client in a time of need. This Rule doesn’t prohibit mail or even text messages, because the recipient can ignore them (or at least have time to reflect on them without a lawyer up in their face).

This brings me to the impetus for this post—CBS News in Chicago recently covered some unsavory solicitation using City of Chicago data. Now, many law firms use data like this to communicate with potential clients, and that’s permissible if the communication is by mail. But phone is out of bounds.

One firm (not mentioned by name in the article) made the mistake of calling my nerd friend Trisha Rich, who is not only an expert in legal ethics but current president of the whole nerd friend organization, after she was involved in a car accident in a taxi.

"I was absolutely stunned actually," Rich said. "I said, 'Why you think that this isn't a conversation that's prohibited by Rule 7.3?"

As a legal ethics expert, Rich knows Illinois Supreme Court Rule 7.3 prohibits the solicitation of clients, including crash victims over the phone.

"He got very upset," Rich said. "He ended up hanging up on me."

I would like to think this got the lawyer to rethink his marketing strategies, but it was probably not.

If you want to use direct solicitation in your practice, stick to mail. Other permissible practices may include online advertising—many clients find lawyers through old-fashioned** Googling, and the tech is good enough now that advertisers can target their messages not only by keyword but by pretty specific location and other metrics. And “advertising” doesn’t come with the same limits as “solicitation” and (probably) won’t land you on the news.

* Now, Illinois’ version of 7.3, like Wisconsin’s and the revised Model Rule, carves out an exception when the person contacted is a lawyer, but only if the solicitation is not coercive or harassing. Still, I can’t imagine the firm contacted Trisha knowing she was a lawyer, and refrained from contacting people who are not. They got lucky, I guess. This time.)

** Google’s founding documents are old enough to be “ancient” and excepted from hearsay, at least in some jurisdictions. I was Googling before that was a verb and before some of you whippersnappers were born.