10 ARIZONA ATTORNEY DECEMBER 2015 www.azbar.org/AZAttorney
by David D. Dodge
David D. Dodge provides consultation
to lawyers on legal ethics, professional
responsibility and standard of care
issues. He is a former Chair of the
Disciplinary Commission of the Arizona
Supreme Court, a current Co-Chair of the
State Bar Member Assistance Committee,
and practices at David D. Dodge, PLC
in Phoenix.
Ethics Opinions
and the Rules
of Professional
Conduct are
available at
www.azbar.org
/Ethics
EYE ON ETHICS
No-Solicitation Rules Alive, Well at Legal Seminars
question a targeted communication initiated by the lawyer? This is further supported
by an observation in an earlier Arizona ethics opinion11 where it is stated that even an
offer by the lawyer to provide a post-semi-nar consultation, free or paid, unaccompanied by any pressure or coercive conduct,
would not constitute the kind of solicitation
contemplated by ER 7. 3 provided the offer
is extended to the group rather than to a
specific person and there is no pressure or
“importuning” on the seminar participants
to accept the offer.
Ohio’s views on the subject to the contrary notwithstanding, in Arizona you are
safe as a seminar speaker if, after the seminar, you ( 1) have business cards and other materials available, but don’t personally
distribute them, and ( 2) answer questions
of a general nature from individual seminar
participants after your presentation, being
cautious not to leave yourself open to claims
that you initiated an in-person solicitation
of a seminar attendee. Remember, you can
always suggest that the person take a card
and call your office for a free consultation.
1. Ohio Adv. Op. 2015-2, Direct In-person
Solicitation of Prospective Clients at Seminars
(Aug. 7, 2015).
2. Brian S. Faughnan, Bad ethics opinion or the
worst ethics opinion?–Ohio 2015 2 edition.
http://faughnanonethics.com/?p=465
3. Arizona Rules of Professional Conduct,
Rule 42, ARIZ.R.S.CT.
4. Cmt. [ 2] to ER 7. 3. The Comment points
out that these forms of solicitation can subject a person to the “private importuning
of the trained advocate” and are considered
“fraught with the possibility of undue influence, intimidation, and overreaching.”
5. Cmt. [ 1] to ER 7. 3
6. Cmt. [ 3] to ER 7. 3.
7. ER 7. 3(a)( 1).
8. Ariz. Ethics Op. 92-10 (Oct. 30, 1992); see
also Arizona Ethics Ops. 87-23 (Oct. 26,
1987) and 88-07 (Sept. 13, 1988).
9. Ariz. Ethics Op. 92-10, supra note 8,
at Section 2.
10. Ariz. Ethics Opinion 87-23, supra
note 8.
11. Id.
endnotes
If you are a speaker at a legal seminar, what you say after
your presentation may be just as important as what you say during it. A
recent ethics opinion from Ohio concerning the solicitation of potential
clients at legal seminars1 has drawn considerable comment, not all of it
complimentary. 2 Some lawyers have even wondered if it might be time
to reconsider ER 7. 3 (Solicitation of Clients), 3 the “no-solicitation” rule
that has already been amended several times since it was first adopted in
Arizona in 1985.
ER 7. 3 is intended to prevent the potential for abuse by lawyers or
their agents through the direct in-person, live telephone or real-time
electronic “solicitation” of someone known to need legal services. 4
“Solicitation” is defined as “a targeted communication initiated by the
lawyer that is directed to a specific person and that offers to provide,
or reasonably be understood to provide, legal services.” 5 Think of the
ambulance chaser and you will get the picture. The thought here is that
there are a host of other ways of letting someone know of a lawyer’s
availability and qualifications without engaging in the type of personal
contact “that may overwhelm the person’s judgment.” 6 The rule covers
many forms of solicitation, but the one we are concerned with here is
the solicitation of potential clients at legal seminars where the lawyer
is the speaker, or one of several speakers, on a topic that the members
of the audience have gathered to hear. In this regard, if the audience is
composed of lawyers, such as a CLE seminar, the rule by its own terms
does not apply. 7
There are quite a few ethics opinions on what lawyers can and cannot
do at legal seminars, including a 1992 Arizona opinion concerning appropriate guidelines for lawyers participating in the State Bar’s Speakers’
Bureau. 8 These opinions generally allow lawyers speaking at seminars to
distribute or make available their business cards, copies of articles they
have written, and written materials, such as newsletters, usually directed
to their existing clients. In Arizona and several other jurisdictions, distribution of these items, particularly business cards, must not be
done personally by the lawyer or someone acting on the lawyer’s behalf. 9 The sense here is that to allow such would constitute a potential for abuse inherent in any “direct interpersonal
encounter,” a risk sought to be prevented by ER 7. 3.10
What got some lawyers exercised about the Ohio opinion
was that it deemed unethical, and a violation of Ohio’s version
of ER 7. 3, any attempt made by a lawyer to remain after a
seminar to discuss with the attendees questions they may have
about the subjects discussed. The opinion states that after a legal seminar a lawyer may not answer specific questions of individual attendees or meet one-on-one with attendees to discuss
any personal legal needs or legal issues related to the presentation. The opinion goes on to say that the lawyer should instead
advise those persons to contact the lawyer’s office to make an
appointment or to seek legal advice from that person’s regular
lawyer. The problem is that the solicitations prohibited by ER
7. 3 are defined as targeted communications “initiated by the
lawyer.” If, after the seminar, any attendee has the option of
just walking out of the room, with or without taking a business
card, or asking the lawyer a question, how is answering that
