What is Unlawful Solicitation?
I am referring here to soliciting future clients. Many of us call it “feeding the pipeline.” Every business needs new clients at a rate that would ensure their continuing profitability.
I like to believe that all my clients come to me upon a nice and even compelling referral from another satisfied client, from a neighbor, a church member, from my dry-cleaning lady or from my local banker. But there are so many lawyers in the Metro Atlanta area (with new law graduates entering the field at 250-300 per year) that I cannot just wait for my law office door to “fly open” with all my new self-referrals.
So how far can I go to bring new clients to me without violating the Bar rules on unlawful solicitation of clients?
Solicitation is defined as a communication initiated by or on behalf of a lawyer or law firm directed to a specific person that the lawyer knows or reasonably should know needs legal services.
The Bar rules do not allow me to “assist or induce” another (employee) to violate the solicitation rules. But this Bar Rule (8.4 (a) ) also states that it is unfair for me to be reprimanded if I do not know the solicitation is taking place.
Almost every day in my workers’ compensation and automobile accident practice in Suwanee, Georgia, I receive unsolicited emails from people who are called lead generators. These folks say in their emails they can help me get many more clients in my areas of practice who are located close to my law office. These lead generator folks are as far away as England and as close as the Atlanta metro area. How they can do what they say they can do is a mystery to me. Most likely they have their own website with names that may be easy to solicit folks on Google. They have names like law.com, lawyers.com, accidents.com and on and on. The question is: are these folks unlawfully soliciting clients for us lawyers? How much different is this type of solicitation from my paralegal assisting in an ad campaign by Geofencing clients who use the local hospital or local MRI facility? Is it direct or indirect solicitation? What is the difference and is it still a violation of the Model Rules?
These are all anti solicitation rules. Some wonder if they would survive a First Amendment to the US Constitution’s Freedom of Speech clause. That complete ban on advertising was struck down in 1974. In a 1995 Florida case, the US Supreme Court narrowly upheld a Florida rule that banned attorney solicitation letters to accident victims or their families for 30 days after the accident. Why 30 days? The Court said there needs to be privacy. Why not 15 days or 45 days? Other members of the Court in this opinion felt the accident victims needed information about legal services. Ironically, the Court did not address a ban on insurance adjusters contacting these same victims.
Lead Generators are a part of commercial speech. Courts are more inclined to allow such “speech” as they solicit on behalf of lawyers seeking to “fill their pipeline”. As the lead generators like to say: “The world is changing. A new model of business development is already generating significant flows of qualified leads for many professional service firms.” (Hinge, 2/3/2022 Website-10 Online Lead Generators Techniques for Professional Services).
Maybe I am still old fashioned. I am not excited about Twitter, LinkedIn, and Facebook as business builders, I am especially glad I have had much success with my client’s cases and have had 42 years of referrals from my satisfied clients. I do not know what I would do if I had to start over as a brand-new lawyer in an environment/market dominated by billboards, lead generators, geofencing, TV advertising, Twitter and beyond. I probably would have bought into a Chick Fil A franchise and offered a different kind of services to folks. I wonder if that option is still available to me (LOL).