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| In 2020 Elmer Fudd and Yosemite Sam were disarmed, while the Colorado Rules of Professional Conduct armed business lawyers in a way heretofore unimaginable. |
An extraordinary thing happened to the Colorado Rules of Professional Conduct six months before everyone was ordered home to their COVID bunkers: the prohibition on soliciting potential business clients was virtually abolished. More incredibly, two years later, hardly anyone in the legal community seems to have noticed. But I’m getting ahead of the story by about 40 years. To appreciate what happened in September 2020 some perspective is necessary.
I have been fascinated with attorney advertising and solicitation ethics rules since law school. In 1981, in lieu of taking a final exam in Professional Responsibility, my friend John Gray and I opted to create a series of unethical attorney radio commercials which systematically violated every rule in the then-effective ABA Code of Professional Responsibility. This was a lot easier under the old CPR. In the era preceding Bates v. State Bar of Arizona the Code was virtually a laundry list of “Thou Shalt Not”s. The Code could have been shortened to simply “Just Say No” and saved a lot of ink. Other than permitting inclusion of certain enumerated information in a “lawyer’s directory” and sanctioning public speaking engagements on general legal topics, advertising was verboten.
The Code’s rules regarding solicitation were even more strict. DR 2-103 provided, “A lawyer shall not, . . . , recommend employment, as a private practitioner, of himself, his partner, or associate to a layperson who has not sought his advice regarding employment of a lawyer.” Any lawyer with the temerity to violate this edict was barred from accepting employment by DR 2-104: “A lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice.” Very few exceptions to the Code’s anti-solicitation rules applied. Only two pertained to most lawyers: (1) a lawyer could accept employment from a “close friend, relative, [or]former client,” or (2) which resulted from public speaking or writing – but only if the lawyer did “not emphasize his own professional experience or reputation and does not undertake to give individual advice.”
The Code’s rules reflected the mores of a time when the Bar viewed itself as a profession rather than a business and, significantly, of a time when there were substantially fewer lawyers and plenty of business to go around. Advertising and solicitation were considered unseemly. It was believed that the public gained little useful information about the selection of a lawyer from a 30-second commercial, a slick tagline, or a memorable moniker. The ban on in-person solicitation also reflected the still-persistent belief that lawyers are silver-tongued Svengalis from whom the public must be protected by keeping them at a safe distance.
The Supreme Court’s decision in Shapero v. Kentucky BarAssociation, striking down a rule prohibiting lawyers from sending solicitation letters to potential clients, had surprisingly little effect on the in-person solicitation ban. Colorado’s adoption of the ABA’s Model Rules of Professional Conduct in 1993 also largely left the anti-solicitation rule intact.
An overhaul of the Colorado solicitation rules in 1997 continued the general prohibition on “in-person” and “live telephone contact” where “a significant motive for the lawyer’s doing so [was] the lawyer’s pecuniary gain,” though an exception for attorneys having a “family or prior [legal] professional relationship” with a client remained. In January 2008, “lawyer[s]” were added as a class of persons an attorney may solicit by “in-person, live telephone or real-time electronic contact,” as were persons with whom a lawyer has a “close personal . . . relationship,” the latter having been an exception under the Code, but not explicitly included in earlier versions of the Rules.
No further changes were made to Colorado’s advertising and solicitation rules until September 10, 2020, when the Colorado Supreme Court repealed and replaced Rules 7.1 – 7.5 in their entirety to align with revisions made by the ABA House of Delegates at its 2018 annual meeting. Among other changes, the 2020 revisions added a third class of persons a lawyer may solicit by “live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain,” specifically “person[s] who routinely use[] for business purposes the type of legal services offered by the lawyer.” Colo. RPC 7.3(b)(3).
The concurrent reversal of the ABA’s position that real-time chat and text messaging constitute solicitation garnered considerable commentary. In contrast, the substantial and largely unexplained expansion of persons who may be solicited for business law services has produced virtually none. This is stunning, since, as the Illinois State Bar Association observed, by this addition “almost any person who has ever hired an attorney might become fair game for in-person solicitation.” Letter from the Ill. State Bar Ass’n to the Am. Bar Ass’n Standing Comm. on Ethics & Pro. Resp. (Feb. 28, 2018), quoted in Ashley M. London, SomethingWicked This Way Thumbs: Personal Contact Concerns of Text-Based AttorneyMarketing, 58 HOUS. L. REV. 99, 141 n.234 (2020).
As justification for this eye-opening erosion of the anti-solicitation rule, Comment [5] to revised Rule 7.3 offers this:
There is far less likelihood that a lawyer would engage in overreaching against a former client, or a person with whom the lawyer has a close personal, family, business or professional relationship . . . . Nor is there a serious potential for overreaching when the person contacted is a lawyer or is known to routinely use the type of legal services involved for business purposes.
While the Comment’s assumption is likely true regarding former clients and other lawyers, it buries the lead and soft-sells the sweeping change of excluding businesspersons from those protected from in-person solicitation.
An honest explanation of this sea change is that the Rules continue to evolve to accommodate the reality that the practice of law is no longer merely a “profession” – it’s big business and highly competitive. It tacitly recognizes that virtually every marketing lunch hosted by a lawyer ends with an “ask” for legal work. Rule 7.3 and Rule 1.6(a) (“A lawyer shall not reveal information relating to the representation of a client”) are routinely violated long before the check arrives.
This is not to denounce the revision. A rule which is routinely more honored in the breach than the observance engenders disrespect for all rules. Moreover, the perception of lawyer-as-Svengali—still reflected in Comment [2] (“[in-person solicitation] subjects a person to the private importuning of the trained advocate in a direct interpersonal encounter”)—is not merely patronizing, but laughable in a business setting. While those who require legal services because they have suffered a sudden and personal calamity may need protection from “the private importuning of [a] trained advocate,” businesspersons—at least the kind coveted by business lawyers—rarely do. There’s a reason why a Google search for “legal industry ‘years behind’” returns over a half-million hits. Big Business is more than a match for Big Law – it both literally and figuratively eats Big Law’s lunch.
Regardless of one’s feelings about this change, the message is clear: It’s now open season on soliciting business owners. A businessperson with legal hiring authority won’t ever have to pay for lunch in this state again.
Originally published in Colorado Law Week (27 August 2021)
