Can a lawyer privately contact his existing clients to tell them about a lawsuit and represent them as additional plaintiffs?

Plain-English summary

A lawyer represented a plaintiff in a suit alleging fraud against a pension fund, brought in the alternative as a class or derivative action before any class was certified. The plaintiff wanted to withdraw, which would end the suit unless other potential claimants continued it. The lawyer asked whether he could privately contact existing clients who were additional potential claimants, advise them of the lawsuit, and represent any who chose to join as substitute plaintiffs.

The committee distinguished its earlier Opinion 853, which had barred a lawyer from privately soliciting other potential claimants to join a not-yet-certified class, on the ground that Opinion 853 involved parties who were not already clients of the firm. The question here was whether former Rule 2-103(a)'s prohibition reached existing clients or only prospective ones. Noting the "inartful" drafting of Rules 2-103 and 2-104 (Opinion 727), the committee read the rule as a whole rather than disjunctively: because the first part of Rule 2-103(a) is tied to the Rule 2-103(b) exceptions, which apply only to prospective clients, the prohibition itself must be limited to prospective clients.

The committee reinforced that reading by pointing to EC 2-3 and 2-4, which limit the restriction on personal-communication solicitation to non-clients. It rejected the argument that an existing client is always "prospective" as to a new matter, particularly where, as here, the additional representation bore a substantial relation to the current representation. It concluded there was no prohibition against the lawyer soliciting his existing clients for the stated purpose.

Currency note

This opinion was issued in January 1984, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 1990 (and later 2010) Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in July 2010 as generally consistent with the 2010 Rule (Rule 7.3(a)(2) with Comment [4]), while cautioning that the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Does the solicitation ban stop a lawyer from contacting his existing clients about a new claim?

A: The opinion concluded no; the committee read former Rule 2-103(a) to reach only prospective clients, so a lawyer may initiate private contact with existing clients to advise them of a potential claim.

Q: How is this different from soliciting potential class members?

A: Per the opinion, the earlier Opinion 853 barred soliciting other potential claimants who were not the firm's clients; here the lawyer proposed to contact only his own existing clients, which the committee found permissible.

Q: Did it matter that the new matter related to the existing representation?

A: Yes. The committee rejected treating an existing client as merely "prospective" for a new matter, especially where the additional representation bore a substantial relation to the current one.

Background and rules framework

The opinion interpreted former Illinois Code Rule 2-103(a) (private-communication solicitation of employment) together with Rule 2-104 (accepting employment from unsolicited advice) and the Rule 2-103(b) exceptions, reading them in light of EC 2-3 and 2-4 (limiting the personal-solicitation restriction to non-clients). The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 7.3(a)(2) with Comment [4], corresponding to ABA Model Rule 7.3 (solicitation of clients).

Citations and references

Rules of Professional Conduct:

• Illinois Code Rule 2-103(a), Rule 2-104, EC 2-3, EC 2-4 (applied in the opinion)
• Illinois RPC 7.3(a)(2) with Comment [4] (2010 equivalent per the Board's affirmation)
• MR 7.3 (solicitation of clients)

Other opinions cited:

• ISBA Opinion 853: a lawyer may not privately solicit non-client potential claimants to join a not-yet-certified class
• ISBA Opinion 727: noting the inartful drafting of Rules 2-103 and 2-104

See also

• ISBA Ethics Op. 84-04: Direct Mail and Welcome Wagon Solicitation
• ISBA Ethics Op. 12-04: Labeling Direct Solicitations as Advertising

Source

• Landing page: https://www.isba.org/ethics/opinions/8412