Can I cold-call a pro se appellee and offer to represent the appeal for free if my real goal is to log the appellate experience I need to get onto the paid court-appointment list?

Plain-English summary

The inquiring attorney proposed to telephone a pro se appellee to offer representation at no fee. The attorney stated that the sole motive was to gain the appellate experience needed to qualify for the Rhode Island Supreme Court's appointment list for handling criminal appeals; attorneys who are appointed from that list are compensated for their services. The attorney asked whether the proposed solicitation violated Rule 7.3(a).

The panel concluded that it would. Rule 7.3(a) prohibits in-person or live telephone solicitation of a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive is the lawyer's pecuniary gain. The panel reasoned that qualifying for the paid appointment list, and the eventual compensation to be derived from it, was a significant pecuniary motive, so the proposed telephone call carried the same dangers of pressure and undue influence that the ban addresses. Reviewing the U.S. Supreme Court's solicitation decisions, the panel found the proposed contact did not involve the political expression or associational activity that protected the lawyer in In re Primus, so it was not constitutionally protected. The panel noted that a direct-mail solicitation would be permitted, subject to the restrictions in Rule 7.3(b).

Currency note

This opinion was issued in February 1998, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 7.3 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, and the solicitation rules have since been amended. 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Does offering to work for free avoid the solicitation ban?

A: Not here. The opinion concluded that the solicitation still violated Rule 7.3(a) because a significant motive was the lawyer's own pecuniary gain, in the form of qualifying for the paid court-appointment list and the compensation that would follow.

Q: Why did the panel treat "experience" as a pecuniary motive?

A: The opinion reasoned that the appellate experience was the qualification needed to get onto the paid appointment list, so the ultimate object was future employment and the pecuniary benefit to be derived from it.

Q: Would a letter have been allowed instead of a phone call?

A: The opinion stated that a direct-mail solicitation would be permitted, subject to the reasonable restrictions set out in Rule 7.3(b).

Q: When is a solicitation constitutionally protected under these cases?

A: The opinion, citing In re Primus and NAACP v. Button, noted that solicitation tied to political expression or associational activity can be protected, but found this proposal involved neither and turned on the lawyer's pecuniary gain.

Background and rules framework

The opinion applied Rhode Island Rule of Professional Conduct 7.3 (Model Rule 7.3) as originally adopted. Rule 7.3(a) barred soliciting professional employment, in person or otherwise (including by telephone), from a prospective client with whom the lawyer had no family or prior professional relationship when a significant motive was the lawyer's pecuniary gain. The panel quoted the official commentary on the potential for abuse in direct solicitation and reviewed the U.S. Supreme Court's line of cases, distinguishing pecuniary-gain solicitation (Ohralik) from constitutionally protected associational solicitation (Primus, Button). The panel noted its jurisdiction was limited to interpreting the Rules and that the ultimate constitutionality of the prohibition would be for the courts.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.3 / RI RPC 7.3(a), 7.3(b) (direct contact with prospective clients)

Cases:

• Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978), upholding a blanket ban on in-person solicitation for pecuniary gain
• Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988), targeted direct-mail solicitation is protected commercial speech
• NAACP v. Button, 371 U.S. 415 (1963), associational solicitation protected by the First Amendment
• In re Primus, 436 U.S. 412 (1978), ACLU lawyer's no-fee solicitation protected as political expression
• In re Teichner, 387 N.E.2d 265 (Ill. 1979), associational solicitation protected despite a pecuniary motive
• In re Appert, 315 N.W.2d 204 (Minn. 1980), same

See also

• RI EAP Op. 98-15: Mass mailing to prepaid-plan members must comply with 7.3
• RI EAP Op. 98-16: Contacting lawyer-referral-service clients is not solicitation

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2098-03.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Final

                         RHODE ISLAND SUPREME COURT
                           ETHICS ADVISORY PANEL
                            Opinion 98-03 - Request 733
                             Issued February 19, 1998

Facts:

    The inquiring attorney proposes to telephone a pro se appellee to offer to represent the

appellee at no fee. The inquiring attorney states that his/her sole motive in soliciting the repre-
sentation is to gain the appellate experience necessary to qualify for the Rhode Island Supreme
Court's appointment list for handling criminal appeals. Attorneys on the list who are so ap-
pointed are compensated for the legal services they provide.
Issue Presented:

   The inquiring attorney asks whether the proposed solicitation violates Rule 7.3(a) of the

Rules of Professional Conduct.

Opinion:

     The proposed telephone solicitation is a violation of Rule 7.3(a).

Reasoning:

   Rule 7.3(a) prohibits in-person solicitation of employment from a prospective client with

whom lawyer has no family or prior professional relationship when a significant motive is the
lawyer's own pecuniary gain. The rule states:

       Rule 7.3. Direct Contact with Prospective Clients. -

       (a) A lawyer may not solicit professional employment from a prospec-
       tive client with whom the lawyer has no family or prior professional re-
       lationship, in person or otherwise, when a significant motive for the
       lawyer's doing so is the lawyer's pecuniary gain. The term "solicit" in-
       cludes contact in person, by telephone or telegraph, or by other commu-
       nication directed to a specific recipient and not meeting the requirements
       of paragraph (b) of this rule.

It is assumed that the person to be solicited has no family or prior professional relationship with
the inquiring attorney.

     In-person and live telephone communications by lawyers present inherent dangers of

pressure and undue influence in a private encounter between a lay person in need of legal ser-
vices and a trained advocate. The official commentary to Rule 7.3 provides:
Final 98-03
Page 2

                There is a potential for abuse inherent in direct solicitation by a lawyer of
     prospective clients known to need legal services. It subjects the lay person to the
          private importuning of a trained advocate, in a direct interpersonalencounter....

                    The situation is therefore fraught with the possibility of undue influence, in-

timidation, and overreaching. This potential for abuse inherent in direct solicitation of prospec-
tive clients justifies its prohibition, particularly since lawyer advertising permitted under Rule 7.2
offers an alternative means of communicating necessary information to those who may be in
need of legal services.

       In Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978) the United States Su-

preme Court upheld the state of Ohio’s blanket prohibition against all forms of in-person solicita-
tion by lawyers for pecuniary gain. The lawyer in Ohralik, after having learned about an auto-
mobile accident, approached the driver while she was lying in traction in a hospital bed and
asked her to sign a contingency fee agreement. The lawyer also went to the passenger’s home.
Eventually he obtained an agreement from both injured persons to engage him on a contingent-
fee basis. Upholding the state’s suspension of the lawyer, the Supreme Court held that a state
may discipline a lawyer “for soliciting clients in person, for pecuniary gain, under circumstances
likely to impose dangers that the State has a right to prevent.” Id. at 449. The Court cited the
state’s responsibility for maintaining professional standards, and preventing solicitation that in-
volves “fraud, intimidation, overreaching, and other forms of vexatious conduct.” Id. at 462.
The Supreme Court concluded that a state may adopt a prophylactic rule categorically banning
all in-person solicitations and may constitutionally sanction lawyers who violate them even in
the absence of actual proof or findings of harm or injury. Id. at 466-67. The Court reiterated that
states may categorically ban in-person solicitation by lawyers for profit in Shapero v. Kentucky
Bar Association, 486 U.S. 466 (1988) in which the Court decided that states may not prohibit
targeted direct mail solicitation because it is afforded some protection as commercial speech un-
der the First Amendment.

       The Supreme Court has limited the restrictions states may place on lawyer solicitation

when the right of association is involved. See NAACP v. Button, 371 U.S. 415 (1963) (solicita-
tion by NAACP lawyers of victims of racial discrimination to participate in civil rights cases
protected by First Amendment.) On the same day Ohralik was decided, the Supreme Court also
decided In re Primus, 436 U.S. 412 (1978). In Primus, an American Civil Liberties Union law-
yer, after speaking to a group of welfare mothers who had been sterilized as a condition of con-
tinued receipt of welfare benefits, wrote a letter to one of the attendees, advising her that the
ACLU had agreed to represent the sterilized women at no fee. The lawyer was disciplined for
soliciting a client on behalf of the ACLU. The Supreme Court reversed the sanction order and
held that the state’s application of the solicitation rules violated the First and Fourteenth
Amendments to the Constitution. Finding that the solicitation was protected by the First
Final 98-03
Page 3

Amendment rights of expression and association, the Court stated that the lawyer’s actions were
“undertaken to express personal political beliefs and to advance the civil-liberties objectives of
the ACLU, rather than to derive financial gain.” Id. at 422. Courts have held that direct solicita-
tions involving associational activities are constitutionally protected even when there was a sig-
nificant motive for pecuniary gain. See In re Teichner, 387 N.E.2d 265 (Ill. 1979); In re Appert,
315 N.W. 2d 204 (Minn. 1980).

       Turning to the instant inquiry, the Panel notes that the inquiring attorney proposes to

telephone a pro se appellee to offer to represent him/her on a pro bono publico basis. The attor-
ney candidly admits that the sole motive for soliciting the representation is to qualify for the
court-appointed list for criminal appellate matters. If as the inquiring attorney represents, a sig-
nificant motive for the solicitation is the personal gain of the inquiring attorney in qualifying for
future employment and the eventual pecuniary benefit to be derived therefrom, then the Panel is
of the opinion that the proposed conduct is an impermissible solicitation. As such, the Panel be-
lieves that the attorney’s proposed conduct presents the same dangers that the ban on in-person
and live telephone communications seeks to prevent. The Panel also finds that the proposed so-
licitation does not involve political expression or the exercise of associational activities. Mindful
that its jurisdiction is limited to interpretation of the Rules of Professional Conduct and that the
constitutionality of the prohibition of the proposed solicitation must ultimately be determined by
the courts, the Panel is of the opinion that the solicitation is not constitutionally protected.

       The Panel therefore concludes that the inquiring attorney’s proposed telephone solicita-

tion of a pro se appellee would be a violation of Rule 7.3(a). The Panel advises that a direct mail
solicitation would be permitted, subject to the reasonable restrictions set forth in Rule 7.3(b).