Can a lawyer in a county bar referral service call a referred prospective client first, before the client contacts the lawyer?

Plain-English summary

The inquirer asked whether RPC 7.3(a) permitted attorneys participating in a county bar association lawyer referral service to initiate telephone contact with prospective clients referred to them. The contact would be made after the attorneys received a written confirmation of the referral but before the prospective clients tried to contact the attorneys.

The committee concluded that such contact is not permissible under RPC 7.3(a). It reasoned that, consistent with the rule's prophylactic prohibition, the attorneys would usually have pecuniary gain as a significant motivation in making such contact, and that the attorney-client relationship does not properly exist unless and until the potential client has first contacted the attorney.

The committee added that attorneys administering the referral service must take care not to risk violating RPC 8.4(a) by facilitating conduct known to be outside the bounds of RPC 7.3(a). It listed possible measures, including timely seeking the committee's opinion, circulating the response among participating attorneys, and including language in referral-confirmation notices reminding attorneys of the RPC 7.3(a) ban on direct solicitation and stating that the county bar association does not sanction the practice. The committee also noted that the county bar association has an aspirational duty under RPC 8.3(b) to report violations of RPC 7.3(a) of which it is aware.

Currency note

This opinion was issued in 2001, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct, and Washington's solicitation and advertising rules (the RPC 7-series) have been revised since. Treat this page as historical context, not current guidance.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 referral-service lawyer call a referred prospective client before the client reaches out?

A: No. The committee concluded that RPC 7.3(a) does not permit participating attorneys to initiate telephone or personal contact with prospective clients referred by the service.

Q: Why does the referral matter, given the lawyer was given the client's name?

A: The committee reasoned that the attorneys would usually have pecuniary gain as a significant motivation, and that the attorney-client relationship does not properly exist until the potential client has first contacted the attorney.

Q: Do the service's administrators have any responsibility?

A: The committee said administrators must take care not to violate RPC 8.4(a) by facilitating conduct outside RPC 7.3(a), and noted the county bar association's aspirational duty under RPC 8.3(b) to report known violations of RPC 7.3(a).

Background and rules framework

The opinion applies Washington RPC 7.3(a) (direct contact with prospective clients; solicitation; corresponding to Model Rule 7.3), treating it as a prophylactic bar on attorney-initiated contact where pecuniary gain is a motive. It also invokes RPC 8.4(a) (violating the rules through the acts of another; Model Rule 8.4) for those administering the service, and RPC 8.3(b) (reporting professional misconduct; Model Rule 8.3) as an aspirational duty of the county bar association. The opinion reflects Washington's pre-2006 rule numbering.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.3 / Washington RPC 7.3(a) (direct solicitation of prospective clients)
• Model Rule 8.4 / Washington RPC 8.4(a) (violating the rules through the acts of another)
• Model Rule 8.3 / Washington RPC 8.3(b) (reporting professional misconduct)

See also

• WSBA Ethics Op. 1218: Targeted Direct-Mail Solicitation Permitted
• WSBA Ethics Op. 1275: Direct-Mail Solicitation Brochure and Recordkeeping
• WSBA Ethics Op. 1297: Lawyer in a Paid Referral Package

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1196

Original opinion text

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

Advisory Opinion: 1956
Year Issued: 2001
RPC(s): RPC 7.3(a)
Subject: Whether a lawyer referral service's lawyer may initiate a call to a referral client

The inquirer asks whether or not it is permissible under RPC 7.3(a) for attorneys participating in a county bar association lawyer referral service to initiate telephone contact with prospective clients who have been referred to them by the lawyer referral service. Such contact is made after receipt by the attorneys of a written conformation of referral and before any attempt by the prospective clients to initiate contact with the attorneys.

The committee opined that it is not permissible under RPC 7.3(a) for the participating attorneys to initiate telephone or personal contact with prospective clients who have been referred to them by a county bar association lawyer referral service. This is because, as is the expectation of the prophylactic prohibition of RPC 7.3(a), the attorneys will usually have pecuniary gain as a significant motivation in making such contact. The attorney-client relationship does not properly exist unless and until the potential client has first made contact with the attorney. Attorneys administering the lawyer referral service must also take care not to risk violating the provisions of RPC 8.4(a) by facilitating conduct known to be outside the bounds of RPC 7.3(a). Possible measures to assist referral attorneys in avoiding violation of RPC 8.4(a) may include the timely seeking of this committee’s opinion, the circulation of the committee’s response among attorneys participating in the lawyer referral service, the inclusion of language in referral confirmation notices that reminds participating attorneys of the RPC 7.3(a) ban on direct solicitation and that the county bar association does not sanction this practice in the context of the lawyer referral service or elsewhere, and, finally, that the county bar association has an aspirational duty under RPC 8.3(b) to report violations of RPC 7.3(a) of which they are aware.