The Ethics of Soliciting Current and Former Clients

Ellen Lockwood, ACP, RP

Ellen Lockwood, ACP, RP

I was recently contacted by a paralegal about a situation in her office. Her supervising attorney had asked her to contact former clients to make sure everything regarding their legal issue had worked out to their satisfaction and inquire whether there was anything else the firm could do for the client. At first, I assumed these were clients whose matters had concluded in the last few weeks and she would be contacting these clients as a form of satisfaction survey. However, the paralegal explained that I was misunderstanding the situation.

The paralegal stated that the attorney was requesting she reach out to clients, some recent, and some of which could be considered former clients as their matters had been resolved quite some time ago. The purpose of the calls was not to determine whether the clients were satisfied with the resolution of their legal matters, instead, the attorney’s goal was to find out if the clients needed additional legal services and if so, to encourage them to have the firm represent them in those matters. The paralegal wisely realized that the attorney was asking her to solicit clients. Although the people she would be contacting are current and former clients, reaching out to them and asking if they have any legal matters they need handled is still solicitation.

Rule 7.03(s) of the Texas Disciplinary Rules of Professional Conduct states in part:

A lawyer shall not by in-person contact, or by regulated telephone or other electronic contact as defined in paragraph (f), seek professional employment concerning a matter arising out of a particular occurrence or event, or series of occurrences or events, from a prospective client or nonclient who has not sought the lawyer’s advice regarding employment or with whom the lawyer has no family or past or present attorney-client relationship when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain.

Since the purpose of contacting the clients is an attempt to bring in more business, it appears such contact would be for the attorney’s monetary gain, and therefore, prohibited conduct for the attorney. Two of the canons of the Paralegal Division Code of Ethics and Professional Responsibility are also applicable to this situation:

Canon 2. A paralegal shall not perform any of the duties that attorneys only may perform or do things which attorneys themselves may not do.

Canon 5. A paralegal shall not solicit legal business on behalf of an attorney.

These canons make clear that the paralegal would be ethically prohibited from contacting the clients to attempt to solicit business for the attorney.

It is fortunate the paralegal questioned whether the attorney’s request was something she should do. Too often paralegals either assume that if the attorney tells you to do it, it is ethical, or are uncomfortable telling the attorney they want to research whether what the attorney is asking is permitted for paralegals. In order to remain ethical, paralegals must educate themselves about ethics and not hesitate to ask questions or conduct research to confirm they are remaining ethical.

Ellen Lockwood, ACP, RP, is the Chair of the Professional Ethics Committee of the Paralegal Division and a past president of the Division.  She is a frequent speaker on paralegal ethics and intellectual property and the lead author of the Division’s Paralegal Ethics Handbook published by Thomson Reuters