The Ethics of the Solicitation of Clients

Ellen Lockwood, CLAS

Ellen Lockwood, CLAS

Canon 2 of the Code of Ethics and Professional Responsibility of the Legal Assistants Division is as follows:

A legal assistant shall not perform any of the duties that attorneys only may perform or do things which attorneys themselves may not do.

Although this encompasses many activities, it also includes the prohibition of legal assistants soliciting clients for attorneys.

Rule 7.03 of the Texas Disciplinary Rules of Professional Conduct provides the guidelines for lawyers to solicit clients, including the prohibitions of contacting prospective clients regarding "a matter arising out of a particular occurrence or event" and of paying or giving anything of value to a non-lawyer for soliciting or referring prospective clients (there are special rules for lawyer referral services).

Most legal assistants know that we cannot solicit clients for the attorneys with whom we work specifically because it is prohibited by the rules referenced above. However, it may be unclear how far this prohibition extends.

When people find out we work in the legal field, we are often asked questions. Of course, we all know we cannot give legal advice, but we are often asked if we know an attorney who can help them. In these situations, you should be careful about referring someone to a specific attorney. If you refer someone to an attorney you do not work with, there is probably no problem unless that attorney thanks you by giving you something of value. However, referring someone to an attorney with whom you work can be more complicated. Even if your attorney or firm doesn’t reward you for the referral, you could be benefitting simply by having the work brought into the firm, perhaps even providing work for you. Does that constitute rewarding you for a referral?

I work in intellectual property law and people often ask me about what do to about their inventions. When I tell them that I cannot give legal advice, but that a patent attorney can answer their questions, I do not provide the names of the attorneys with whom I work unless I am asked. I do not carry their business cards and do not hand out mine unless asked. Since I do not work for the only patent attorneys in town, I don’t want to appear to be soliciting clients for them. Friends have referred their friends to me who have intellectual property issues, and I have had the attorneys I work with call them back. This has resulted in several new clients for my attorneys. However, since I did not ask or even encourage my friends to have their friends contact me, I do not think I have given even an appearance of soliciting clients.

I participate in an email forum for legal assistants and on occasion, members of the forum have asked if other members work for referrals to attorneys who practice particular areas of law, including attorneys who work with the forum members. Again, this practice is fine since the people providing the referrals are not soliciting clients, just responding to requests from others.

Since we work in the legal field, people will always contact us requesting referrals to attorneys, even requesting referrals to the attorneys with whom we work. As long as you are not encouraging these referral requests, and as long as your attorneys and firm are not rewarding you for referrals, you should be well on the ethical side of solicitation of clients.

Ellen Lockwood, CLAS, is the Chair of the Professional Ethics Committee of the Legal Assistants Division, a position she has held since 1997. She is Treasurer of LAD and a past president of the Alamo Area Professional Legal Assistants in San Antonio.