91-17: Solicitation

6/1991

Attorney ending his association with a law firm may send letters to clients he worked with while at the firm, notifying clients of his departure and stating that they are free to choose whether to remain with the firm or to retain him.

FACTS

The Committee on the Rules of Professional Conduct has received several telephone inquiries concerning whether an attorney who is terminating his relationship with a law firm may ethically contact clients he worked with while at the firm, and if so, whether the attorney must comply with the requirements of ER 7.3. Typically, the inquiring attorney proposes to send a letter to these clients, explaining his departure from the law firm, listing his new address, and informing the client that the client is free to choose whether he wants to stay with the law firm or to retain the inquiring attorney.

Because of the widespread interest in this issue, the Committee on the Rules of Professional Conduct is issuing this opinion on its own initiative, pursuant to Paragraph 2 of the Committee's Statement of Jurisdictional Policies.

QUESTIONS PRESENTED

1. May an attorney who is terminating his association with a law firm contact clients he worked with while at the firm?

2. If so, must the attorney's communications with these clients comply with the requirements of ER 7.3?

3. Must the attorney's communications with these clients comply with the requirements of ER 7.2(e) and (f)?

ETHICS RULES

ER 7.2 Advertising

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(e) Written communications to prospective clients for the purpose of obtaining professional employment are subject to the following requirements:

(1) Such written communications shall be plainly marked "Advertisement" on the face of the envelope and at the top of each page of the written communication in type no smaller than the largest type used in the written communication; and

(2) A copy of each such written communication shall be retained by the lawyer for three years. If written communications identical in content are sent to two or more prospective clients, the lawyer may comply with this requirement by retaining a single copy together with a list of the names and addresses of persons to whom the written communication was sent.

(f) A lawyer shall not send, or knowingly permit to be sent, on behalf of himself, his firm, his partner, an associate, or any other lawyer affiliated with him or his firm, a written communication to a prospective client for the purpose of obtaining professional employment if:

(1) The written communication concerns a specific matter and the lawyer knows or reasonably should know that the person to whom the communication is directed is represented by a lawyer in the matter;

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ER 7.3 Direct Contact With Prospective Clients

(a) A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship in person or by telephone, when a motive for the lawyer' s doing so is the lawyer's pecuniary gain.

(b) Subject to the requirements of ER 7.1 and ER 7.2, and paragraph (C) herein, a lawyer may initiate written communication, not involving personal or telephone contact, with persons known to need legal services of the kind provided by the lawyer in a particular matter, for the purpose of obtaining professional employment. Such written communication shall be clearly marked on the envelope and on the first page of the communication contained in the envelope, as follows:

ADVERTISING MATERIAL

THIS COMMERCIAL SOLICITATION HAS NOT BEEN APPROVED BY THE STATE BAR OF ARIZONA.

Said notification shall be printed in red ink, in all capital letters, in type size at least double that used in the body used in the communication. If the solicitation advertises representation on a contingent or “no recovery, no fee” basis, it shall also state that the client may be liable for costs and expenses.

(c) At the time of dissemination of such written communication, a copy shall be forwarded to the Clerk of the Arizona Supreme Court and the State Bar of Arizona at its Phoenix office. If a written communication identical in content is sent to two or more prospective clients, the lawyer may comply with this requirement by forwarding a single copy together with a list of names and addresses of persons to whom the written communication was sent.

OPINION

There is no specific provision in the Rules of Professional Conduct prohibiting ·an attorney from contacting individuals he worked with while at a law firm. In fact, ER 5.6(a)^[1] would seem to prohibit a law firm from forbidding a departing attorney from contacting such individuals. In addition, there is some case law to the effect that a law firm may not enforce restrictive covenants contained in an employment agreement. See Cohen v. Lord. Day & Lord, 550 N.E.2d 410 (N.Y. 1990); Williams & Montgomery. Ltd. v. Stellato, 552 N.E.2d 1100 (Ill. App. 1990). Therefore, as long as the lawyer complies with the Rules of Professional Conduct concerning advertising and solicitation, he may ethically contact these persons.

ER 7.3 applies only to contacts with individuals "with whom the lawyer has no family or prior professional relationship." This exception to the general rule against direct contact with prospective clients was created because current and former clients, who are already familiar with the lawyer, are not susceptible to the overreaching that might occur in a direct interpersonal contact between a lawyer and a prospective client. See G. Hazard, Jr. and W. Hodes, The Law of Lawyering § 7.3:201 (2d ed. 1990). In light of this policy, we believe that the term "prior professional relationship" in ER 7.3 is broader in scope than the terms "current client" or "former client" and includes all individuals with whom the lawyer had significant personal contact while at the law firm. Most ethics committees in other jurisdictions have come to this conclusion. See, e.g., American Bar Association Informal Opinion 1466 (February 12, 1981); Alabama State Bar Ethics Opinion 82-689 (undated); Michigan Ethics Opinion CI-517 (April 24, 1980); Kentucky Bar Association Ethics Opinion 317 (January, 1987). The Committee therefore believes that ER 7.3 does not apply to communications between a departing lawyer and clients with whom he had significant personal contact while at the law firm.

Of course,' such communications must be truthful, in compliance with ER 7.1, and must also comply with the requirements of ER 7.2. Two subsections of ER 7.2, ER 7.2(e) and (f), merit special discussion.

ER 7.2(e)(1) requires that written communications to prospective clients for the purpose of obtaining professional employment must be plainly marked “Advertisement” on the face of the envelope and at the top of each page of the written communication. We believe that the provisions of ER 7.2(e) do not apply to a communication such as that described in the facts of this opinion, which merely notifies the client of the departing attorney's change of employment, gives the departing attorney's new address, and informs the client he is free to choose who will represent him in the future. Such announcements are not "for the purpose of professional employment" for the purposes of this rule. In the past, this Committee has declared that written communications without this purpose were not subject to ER 7.2(e). See Opinion 88-07 (advertisements promoting estate planning seminars); Opinion 90-04 (announcements sent to attorney's family, friends, present and former clients, and other attorneys); Opinion 90-05 (law firm-prepared "construction law digest" sent to individuals and organizations in the construction law industry). Of course, we do not decide here that all announcements by a departing lawyer are free from the requirements of ER 7.2(e). Any communications expressly urging the reader to employ the lawyer are clearly advertisements and must contain the disclaimer in ER 7.2(e) (1). See Opinion 88-07 at 7.

ER 7.2(f)(1) prohibits a lawyer from sending a written communication concerning a specific matter when the lawyer knows or reasonably should know that the person to whom the communication was sent is already represented by a lawyer in the matter. This rule does not apply to the announcement described in the facts of this opinion, for the reasons already discussed; ER 7.2(f), like ER 7.2(e), applies only to a communication to "a prospective client for the purpose of obtaining professional employment." Even if the communication did have such a purpose, this Committee could not, without further facts, issue an opinion as to who "represents" a client when the attorney who worked with the client leaves the law firm. Such a determination would depend on the fee agreement with the client, the employer's contract, if any, with the departing attorney, and possibly other legal factors involving employee/employer relations. This Committee cannot issue an opinion as to a question of law. See the Committee's Statement of Jurisdictional Policies, Paragraph 6(A).

Although we believe that there is no ethical prohibition on a departing attorney contacting individuals with which he had a prior professional relationship, we note that there are many issues involving the law of unfair competition, tortious interference with business relations, and perhaps other areas of the law which may affect the attorney's decision whether to contact these persons in the first place, and which may affect the contents of the communication. For a general discussion of these issues, see ABA/BNA Lawyers Manual on Professional Conduct at page 91:706-711 and 720; The Law of Lawyering, §§ 7.3:201, 7.3:204. The Committee must leave the resolution of these issues to the departing attorneys, pursuant to Paragraph 6(A) of our Statement of Jurisdictional Policies.

In conclusion, we believe that an attorney who is terminating his association with a law firm may contact clients he worked with while at the law firm. When he has had significant personal contact with those clients, the restrictions of ER 7.3 do not apply. The contents of any communication must still comply with ER 7.1 and ER 7.2. However, a neutral announcement such as that described in the facts of this opinion is not subject to the requirements of ER 7.2(e) or (f). Finally, we caution the departing attorney that he should research the potential legal implications of contacting these clients before sending out any communications to them.

Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.

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[1] ER 5.6(a) provides "A lawyer shall not participate in offering or making a partnership or employment agreement that restricts the rights of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement[.]"