Can a lawyer telephone people the bar referral service listed who never called the lawyer back?

Plain-English summary

A lawyer who paid to register with the South Carolina Bar's Lawyer Referral Service received quarterly reports listing the people referred to him. Noticing that over half the listed people had never contacted him, he asked whether he could look those names up in the phone book and call them to offer his services, and whether it mattered if the call was made by him or by a staff member.

The committee concluded it would not be proper for the lawyer to initiate such a call. When the service gives a caller a lawyer's name and number and the caller then fails to call the lawyer for an appointment, no professional relationship exists between them. Rule 7.3(a) bars a lawyer from soliciting professional employment by in-person or live telephone contact from a prospective client with whom the lawyer has no family or prior professional relationship, so initiating telephone contact with those people would violate Rule 7.3. The committee noted the practical and privacy problems: the reasons people had not called were many (cost, a different lawyer, a change of mind, calling for a friend), an unsolicited call could cause embarrassment or harm, and the listings often gave only a partial name (such as "Danny" or "Mr. West") with no number or address, so the lawyer could easily call the wrong person. It quoted the comment to Rule 7.3 on the potential for abuse in direct live contact and observed that Rule 7.3 leaves open written communication with such a prospective client if its procedures are followed.

Currency note

This opinion was issued in 1993, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer call referral-service recipients who never contacted the office?

A: No. The committee concluded that because no professional relationship had formed, Rule 7.3 barred the lawyer from initiating live telephone contact to solicit employment.

Q: Does it matter whether the lawyer or a staff member makes the call?

A: No. The committee found the prohibition applies regardless of whether the lawyer or someone in the office places the call.

Q: Could the lawyer reach those people any other way?

A: Yes. The committee noted Rule 7.3 leaves open written communication with such a prospective client, provided the lawyer follows the procedures the rule sets out.

Background and rules framework

The opinion applied Rule 7.3 (solicitation of clients), which corresponds to like-numbered Model Rule 7.3. Rule 7.3(a) bars in-person or live telephone solicitation of professional employment from a prospective client with whom the lawyer has no family or prior professional relationship.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 7.3(a) / Model Rule 7.3(a): a lawyer shall not by in-person or live telephone contact solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship.

See also

• SC Bar Ethics Op. 03-03: Following Up a Referral Lead
• SC Bar Ethics Op. 00-10: Online Attorney-Matching Service
• SC Bar Ethics Op. 06-13: Referrals From a Trade Group

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-93-21/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 93-21

The South Carolina Bar offers its members the opportunity to pay a fee to register with the Lawyer Referral Service. At the end of each quarter, the Lawyer Referral Service sends a report to the attorney listing the names of people who were referred to the attorney. Upon examining the listing, a lawyer who is a member of the Lawyer Referral Service observes that over 50% of the people listed have not made contact with him. The reason is unknown.

Question:
Would it be unethical for the attorney receiving this quarterly report to look the names up in the phone book and call the persons who have not contacted him for his advice/services subsequent to the referral by the Lawyer Referral Service?
Does it make any difference whether the attorney calls or whether a staff member of his office makes the call?

Summary:
It would not be proper for the attorney to initiate a call to such prospective clients who have not called his office. (It should be noted that the list of names includes neither telephone numbers nor addresses and sometimes only one name of the caller is listed, such as "Danny" or "Mr. West".)

Opinion:
When a person calls the Lawyer Referral Service, the caller is given the name and telephone number of a lawyer from its lists. The caller is instructed to contact the attorney as soon as possible to make an appointment and is informed of the fee he will be required to pay. In its quarterly reports, the Service warns the participating lawyers that the callers do not always give their correct names.

Rule 7.3(a) states as follows: "A lawyer shall not by in-person or live telephone contact solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship...." When a person has been given a lawyer's name and telephone number by a third person and has failed to call the lawyer to make an appointment, it is clear that no professional relationship exists between that person and the lawyer and it would therefore be a violation of Rule 7.3 for the lawyer to initiate a contact with that person by telephone.

The reasons why such callers have failed to contact the attorney are manifold: they may not wish to pay the fee involved; they may not want that particular lawyer; they may have changed their mind or may be keeping the lawyer's name for future use; they may have been calling for a friend. Whatever the reason, significant embarrassment and even harm could be caused to such a caller by receiving an unsolicited call from the lawyer. Moreover, in most cases the name of the caller by itself is insufficient to clearly identify the caller and the lawyer could easily call the wrong person.

The rationale for the prohibition of unsolicited telephone calls is set forth in the comment to Rule 7.3: "There is a potential for abuse inherent in direct in-person or live telephone contact by a lawyer with a prospective client known to need legal services. These forms of contact between a lawyer and a prospective client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter." It should be noted that Rule 7.3 does provide the lawyer with an alternative means of communicating in writing with such a prospective client, providing the lawyer follows the procedures set forth in that Rule.