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  • May 26, 2010

    Soliciting divorce clients: Is it permissible?

    Tim Pierce Soliciting Divorce Clients

    June 2, 2010 – Personal injury lawyers often use targeted direct mail to solicit clients. After obtaining information about recent accidents, usually by open records requests to law enforcement agencies, law firms will send solicitation letters to the individuals involved. This practice is permissible under Wisconsin’s Rules of Professional Conduct for Attorneys (the “Rules”), provided such letters comply with SCR 20:7.3.

    While it is clear that this practice is acceptable, from time to time I am asked whether targeted direct mail solicitation is permitted in other contexts. This article will discuss whether a family lawyer may send targeted direct mail solicitations to individuals named in recent divorce filings after obtaining this information from CCAP or other public sources.

    First, it is important to define exactly what is meant by the term “solicitation.” Solicitation is not advertising, which is the general dissemination of information about a lawyer’s services (e.g., a billboard). Solicitation, as that term is used in the Rules, means contact by a lawyer with a prospective client known to be in need of legal services for the purpose of securing professional employment for pecuniary gain. The distinctive feature of solicitation is that it is targeted at an individual or organization that the lawyer knows or believes to be in need of legal services.

    Targeted direct mail solicitations, like lawyer advertising generally, has long been subject to regulation. The original version of ABA Model Rule 7.3 prohibited solicitation by any means, including mail. The U.S. Supreme Court, however, in Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988), ruled that targeted direct solicitations, like lawyer advertisements in general, are a form of constitutionally protected commercial free speech and thus could not be prohibited by a state. The Court did acknowledge that, while such mailings could not be banned, reasonable regulations, such as labeling requirements, were permissible.

    SCR 20:7.3 governs solicitation by Wisconsin lawyers and it provides, in relevant part, as follows:

    (a) A lawyer shall not by in-person or live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted:

    (1) is a lawyer; or

    (2) has a family, close personal or prior professional relationship with the lawyer.

    (b) A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by par. (a), if:

    (1) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person makes it unlikely that the person would exercise reasonable judgment in employing a lawyer; or

    (2) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or

    (3) the solicitation involves coercion, duress or harassment.

    (c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words “Advertising Material” on the outside envelope, if any, and at the beginning and ending of any printed, recorded or electronic communication, unless the recipient of the communication is a person specified in pars. (a)(1) or (a)(2), and a copy of it shall be filed with the office of lawyer regulation within five days of its dissemination.

    The Rule thus prohibits in-person, telephonic, and real-time electronic solicitation in (a), prohibits any form of solicitation if the circumstances are such that the solicitation would be tantamount to harassment in (b), and imposes labeling and filing requirements on targeted direct mail solicitations in (c).

    In considering the question at hand, it is first worth noting that nothing in the Rule prohibits a lawyer from obtaining information about potential clients from public sources such as CCAP. There is also nothing in the Rule that prohibits direct mail solicitation in any particular type of legal matter, such as family law.

    If there is no specific prohibition on using targeted direct mail in family law matters, it may still be questioned whether sending direct mail solicitations to individuals named in recently filed divorce petitions violates the prohibition in SCR 20:7.3(b)(1). This subsection serves to protect individuals who have suffered recent trauma from potential overreaching by lawyers seeking business.

    There is little Wisconsin case law interpreting SCR 20:7.3(b)(1). In Disciplinary Proceedings against Whiting, 2003 WI 14, 265 Wis. 2d 407, 667 N.W.2d 355, the Wisconsin Supreme Court imposed reciprocal discipline on a Wisconsin lawyer who had been disciplined in Illinois, in part for violating Rule 7.3(b)(1). The basis for the Rule 7.3(b)(1) violation in the Illinois disciplinary proceeding was that the lawyer sent a solicitation letter to the family of a woman killed in a traffic accident three days after the fatal accident.

    In Disciplinary Proceedings against Kuhnmuench, 2000 WI 32, 233 Wis. 2d 464, 609 N.W.2d 471, the court accepted a lawyer’s voluntary petition for revocation. In the very brief decision, it was noted, without further elaboration, that part of the misconduct that formed the basis for the revocation was that the lawyer had “persistently sent written communication involving coercion, duress or harassment to a person recommending his legal services after he was asked not to” in violation of SCR 20:7.3(b).

    Given the sparse Wisconsin case law, and the fact that there is no Wisconsin ethics opinion that elaborates upon SCR 20:7.3(b)(1), it is worth looking to other states.

    In a New Jersey case, In re Ravich, Koster, Tobin, Oleckna, Reitman & Greenstein, 715 A.2d 216 (N.J. 1998), a law firm established a mobile office in a vehicle parked on the street at the site of a shelter for victims of destroyed apartment complex. The lawyers placed advertisements on the side of the vehicle and initiated contact with the victims. The New Jersey Supreme Court found that such conduct violated the state’s Rule [image]7.3[image](b)(1), which prohibits a lawyer from contacting a prospective client if the lawyer knows or reasonably should know that the physical, emotional, or mental state of the recipient is such that the recipient could not exercise reasonable judgment in employing a lawyer. The court stated that the issue in such situations was not whether the victims actually felt overwhelmed or pressured by the lawyers, but whether the lawyers should have known that the accident victims could not make a reasonable judgment about hiring a lawyer.

    In a case out of Ohio, Akron Bar Association v. Amourgis, 113 Ohio St. 3d 32, 862 N.E.2d 501 (2006), a lawyer was disciplined, in part, for mailing a solicitation letter to a respondent in a divorce without first ensuring that the respondent had been served by the petitioner. This case would seem to be of particular importance because this very circumstance triggers objections on occasion. For example, a lawyer filing a divorce on behalf of a wife of an abusive spouse may not immediately serve the spouse to allow time for the wife to establish a safe residence. If the first notice that the spouse receives of the divorce filing comes in a solicitation letter, this defeats the purpose of temporarily withholding service. Amourgis, however, does not stand for the proposition that a lawyer who sends a solicitation letter to a party in a divorce without first ensuring that the party has been served violates SCR 20:7.3(b)(1). At the time this case was decided, Ohio had a specific disciplinary rule that required lawyers to refrain from sending solicitation letters to parties in civil litigation until ensuring that the party had been served. Wisconsin has no such Rule, and there is no language in Amourgis stating that in the absence of such a specific rule, such conduct would be impermissible.

    After reviewing these relevant cases, it becomes clear that SCR 20:7.3(b)(1) does not impose a blanket prohibition of soliciting divorce clients based upon information gained from CCAP. Whiting and Ravich stand for the proposition that solicitation in the immediate aftermath of a clearly traumatic incident will likely violate SCR 20:7.3(b)(1), but as a divorce may be relatively amicable, the mere fact that a divorce petition has been filed cannot be equated with a fatal accident or disaster. Kuhnmuench simply stands for the unremarkable proposition that a lawyer cannot continue to solicit a prospective client after being told to stop, and Amourgis relied upon a rule that does not exist in Wisconsin.

    Thus, Wisconsin’s Rules of Professional Conduct for Attorneys do not prohibit a lawyer from using targeted direct mailings, which meet the labeling and filing requirements of SCR 20:7.3, to solicit clients in divorces.

    This article is originally published in the Spring 2010 edition of the Wisconsin Journal of Family Law, published by the State Bar Family Law Section. The State Bar offers its members the opportunity to network with other lawyers who share a common interest through its 26 sections. Section membership includes access to newsletters, email lists to facilitate information sharing, and other resources.

    Timothy J. Pierce is ethics counsel for the State Bar of Wisconsin. He can be reached at (608) 250-6168, (800) 444-9404, ext. 6168, or tpierce@wisbar.org.


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