Prior Business Relationships Permit In-Person Solicitation
Adopted: October 23, 2015
Opinion rules that the business relationships with health care professionals created by a lawyer previously employed as a health care consultant constitute prior professional relationships within the meaning of Rule 7.3(a) thus permitting the lawyer to directly solicit legal employment by in-person, live telephone, or real-time electronic contact with the health care professionals.
Inquiry:
Smith is a lawyer and also holds a graduate degree. Following her admission to the North Carolina bar, Smith worked as a health care consultant for a health care consulting firm. During her years as a consultant, she developed a number of professional relationships with health care professionals. Recently, Smith joined a law firm where she concentrates on health law. She now wishes to contact directly those health care professionals with whom she developed professional relationships when she was a health care consultant. Her purpose in doing so is to inform the health care professionals of her career change and her availability to provide legal services in health care related matters.
Rule 7.3(a) prohibits a lawyer from soliciting professional employment from a potential client for the lawyer’s pecuniary gain via "in-person, live telephone, or real-time electronic contact..." Among the exceptions to the rule, a lawyer is not prohibited from soliciting professional employment by direct contact if the person contacted "has a family, close personal, or prior professional relationship with the lawyer" [emphasis added].
Are Smith’s prior relationships with health care professionals "prior professional relationships" as that term is used in Rule 7.3(a), thereby allowing her to engage in in-person solicitation of the health care professionals?
Opinion:
Yes.
The purpose of the prohibition on in-person solicitation is to prevent undue influence, intimidation, and over-reaching by the lawyer. Comment [2] to Rule 7.3 provides:
There is a potential for abuse when a solicitation involves direct in-person, live telephone, or real-time electronic contact by a lawyer with someone known to need legal services....The situation is fraught with the possibility of undue influence, intimidation, and over-reaching.
The rule specifically exempts prior relationships because it is unlikely that a lawyer will engage in abusive practices when the lawyer has a family, close personal, or prior professional relationship with the person she is contacting. See Rule 7.3, cmt [5].
"Professional relationship" is not defined in the Rules of Professional Conduct. However, the Ethics Committee previously opined that a lawyer, who is also a certified public accountant working for an accounting firm, may call or visit a prospective client to solicit legal business if the lawyer established a "prior professional relationship" with the individual as a client of the accounting firm. See 2000 FEO 9. This indicates that the phrase "prior professional relationship" as used in Rule 7.3(a) is not limited to prior client-lawyer relationships, but includes business relationships such as client-accountant relationships. Therefore, the business relationships Smith developed while working as a health care consultant constitute "prior professional relationships" within the meaning of Rule 7.3(a), and Smith may directly contact these individuals to solicit legal employment.