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  • Inside Track
    December 17, 2014

    Ethical Dilemmas: What Solicitation Activities are Prohibited as ‘Real-time Electronic Contact’?

    Dec. 17, 2014 – This month’s Ethical Dilemmas question offers guidance the types of solicitation activities prohibited as “real-time electronic contact.” While there is not year a clear answer, Wisconsin lawyers relying on guidance from other jurisdictions may assume that email and text messages, when otherwise in compliance with the Rules, are not prohibited methods of solicitation.

    Question

    SCR 20:7.3 prohibits solicitation by in-person, live telephone, or real-time electronic contact. I understand in-person and telephone contact, but I’ve searched the Rule and Comment for a definition of “real-time electronic contact” and can’t find anything. What exactly is prohibited real-time electronic contact?

    Answer

    A solicitation, as defined by ABA Model Rule 7.31 Comment [1], “is a targeted communication initiated by the lawyer that is directed to a specific person that offers to provide, or can reasonably be understood as offering to provide, legal services.“ SCR 20:7.3(a) prohibits lawyers from using in-person, live-telephonic, or real-time electronic contact to solicit professional employment from prospective clients. SCR 20:7.3(c) allows lawyers to solicit professional employment from prospective clients by targeted direct mail, provided the letters and envelopes are properly labeled “advertising materials” and a copy is timely filed with the Office of Lawyer Regulation.

    A typical example of permissible targeted direct-mail solicitation is the personal injury lawyer who obtains information about recent accidents and sends letters to those involved. The Rule, does not, however, define real-time electronic contact. So the question arises as to whether targeted emails, instant messages, communication in chat rooms, and other forms of Internet-based communications are prohibited “real-time electronic contact” or something more akin to permissible targeted direct mail solicitations.

    While some early ethics opinions2 deemed email to be a prohibited form of solicitation, ABA Model Rule 7.3 Comment [3] now recognizes that email is not prohibited real-time electronic contact.

    So if email is OK, what is prohibited real-time electronic contact? Neither ABA Model Rule 7.3 nor SCR 20:7.3 define real-time electronic contact, and no other Wisconsin authority directly addresses this point. However, the clearly prohibited forms of solicitation (in-person and by phone) involve live real-time contact.

    Several states’ ethics opinions have taken the position that real-time electronic communications are personal solicitations prohibited by their respective versions of 7.3(b).3 In particular, California State Bar Ethics Opinion 2004-166 held that lawyers’ communication, under certain circumstances, with prospective fee-paying clients in an Internet chat room for people affected by a mass disaster violated solicitation rules. Therefore, it is reasonable to assume that types of electronic solicitation that involve similar forms of real-time communication, such instant messaging, would be prohibited; however, this view is not universally shared.4

    Conversely, Philadelphia Bar Ethics Opinion 2010-6 opined that soliciting clients through social media, chat rooms, email, and blog postings all do not constitute prohibited “real-time electronic contact.” Because the recipient of such communications can turn off, or choose to ignore the soliciting lawyer, and such communications can be recorded, such communications do not contain the same potential for abuse as face-to-face or telephonic communication. The opinion further holds that prohibited real-time electronic communication is limited to modes of electronic communication used in a way in which it would be socially awkward or difficult for the recipient not to respond in real time, such as Internet-based voice chats. This opinion is notable in that it acknowledged that, as drafted by the ABA, the ban on “real-time electronic contact” was specifically intended to encompass chat rooms, but nonetheless opined that chatrooms were not prohibited.

    Most recently, Ohio Supreme Court Ethics Opinion 2013-2 opined that text messages were not real-time electronic contact and could be used as long as the text messages complied with other relevant Ohio rules.

    While there is not year a clear answer, Wisconsin lawyers relying on guidance from other jurisdictions may assume that email and text messages, when otherwise in compliance with the Rules [such as the labeling and filing requirements of SCR 20:7.3(c)] are not prohibited methods of solicitation. Chatrooms, however, probably remain off limits.

    Endnotes

    1 Wisconsin’s current SCR 20:7.3 does not contain a definition of “solicitation.”

    2 See e.g. Illinois Ethics Op. 96-10 (1997) and Tennessee Formal Ethics Op. 95-F-570 (1995)

    3 Fla. Op. A-00-1, W.Va. 98-93, Ill. Op. 96-10.

    4 Compare Florida Advertising Op. A-00-1 (2000), Utah Ethics Op. 97-10 (1997), Virginia Advertising Op. A-0110 (1998) with California Formal Ethics Op. 2004-166, Arizona Ethics Op. 97-04 (1997).



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