Rules of Professional Conduct – Comment Period Closed April 9, 2023

This rule amendment is far too broad and would prohibit a lot of common marketing practices that are perfectly normal and respectable. For instance, purchasing a hole sponsor at a golf tournament and setting up a booth at the hole to meet potential clients is a form of direct solicitation with persons that are neither close friends, relatives, or former clients. Or, meeting someone at a networking event and inviting him or her to lunch to discuss what you (the attorney) can do for their business seems to violate this rule. In fact, although networking is a very common way to solicit business (and probably preserves the image of the practice more than putting up billboards on the freeway), it would likely violate this rule in several circumstances.

This proposed rule should not be adopted. Why would we limit our own profession in such a manner? At a minimum there should be an exception for direct solicitations where the potential client is an attorney.

An ABA article that appears to be about 20 years old begins with the following in its introduction: “the organized bar can do no greater disservice to itself, its members or the public than to promote or encourage unconstitutional regulations governing lawyer advertising.”

One of its cited cases notes, “the Supreme Court has also stated that in regulating truthful, commercial speech, the State must prove that its interests in proscribing [**8] that speech are substantial, that the regulations advance these interests in a direct and material manner, and that the magnitude of the restriction is proportionate to the State’s interests in the regulation. Edenfield, 113 S. Ct. at 1800; see also Shapero v. Kentucky Bar Ass’n, 486 U.S. 466, 108 S. Ct. 1916, 100 L. Ed. 2d 475 (1988) (stating that “commercial speech that is not false or deceptive and does not concern unlawful activities . . . may be restricted only in the service of substantial government interest, and only through means that directly advance that interest.”).” Moore v. Morales, 843 F. Supp. 1124, 1126 (S.D. Tex. 1994)

The above constitutes 10 minutes of research, and appears dispositive. If a blanket ban on all communication with potential clients, excepting direct mail, is a simple matter to overturn in Federal Court, why waste the time and money defending something that is clearly not tailored to advance state interests in a direct and material manner, proportionate to the State’s interest?

I propose any limit on lawyer advertising be limited to misleading, false, or deceptive solicitations, however initiated.

I don’t engage in direct solicitation of any form, but I don’t agree that it should be prohibited. I know there are lawyers on TikTok and other social platforms, presenting information and answering questions in real time as a means to solicit business. What is wrong with that (well, besides the problems with TikTok itself…)? This rule is written so broad, that it would prohibit lawyers from soliciting business from BNI groups, Kiwanis or Rotary, or Chamber of Commerce unless that BNI or Chamber member is a “CLOSE friend, relative, or former client of the lawyer.” There isn’t sufficient justification for this rule, and it is frustrating any time that the Supreme Court or other administrative committees, most of whom have never engaged in private practice of law or dealt directly with an an individual client, try to micromanage the private practice of law. If we’re opening a sandbox and allowing more people and entities into the legal space (which I support completely), then let’s stop the micromanagement and unnecessary red tape of running a private practice trying to represent and help individuals in need.

The proposed amendment prohibiting “direct solicitation of a potential client by a lawyer” should be rejected. It infringes on a lawyer’s right to seek and obtain gainful professional employment through reasonable means. And it fails to promote any sound public policy; to the contrary, it would often preclude a lawyer from offering needed legal services to a person in need of those services who may not otherwise recognize his or her legal rights, with the result that people in need of legal services but unaware of their rights would be the unintended victims of this proposed amendment.

The proposed amendment is also terribly vague, resulting in a trap for the common lawyer. It fails to define a “close friend” as opposed to a friend who is not “close”; and it fails to define who is a “relative.”

This proposed rule should be rejected.

An allowance should be added for following up with and contacting a stranger when the contact is based upon a bona fide referral made by a family member, friend, or a trusted professional or personal adviser of the potential client. The way this is currently drafted, it would seem to proscribe an attorney initiating first contact with a potential client who was referred to my office by an uncompensated referrer (e.g., friend, financial adviser, CPA, title company, realtor, or similar professional). Under this language, to comply with the rules I have to wait for the referred person to contact my office and cannot be proactively responsive to the referral, even when the potential client may have expressly, though indirectly, invited the contact in pursuit of professional advice.

I would like to know how this applies to message board answers like hose on AVVO. Does this specifically outlaw those communications, though they are generally not real time?

ABA Model Rule 7.3 prohibits only “live person-to-person contact” and provides for certain exceptions. The Comments to the ABA rule define “live person-to-person contact” as “in-person, face-to-face, live telephone and other real-time visual or auditory person-to-person communications where the person is subject to a direct personal encounter without time for reflection.” The Comment specifically states that “[s]uch person-to-person contact does not include chat rooms, text messages or other written communications that recipients may easily disregard.” In contrast, the proposed amendment to Utah’s Rule 7.1 would prohibit “text,” “email,” or “any other electronic communication.” The amendment does not offer any justification for the greater restriction. This lack of any justification is puzzling, particularly given that the amendments made to Utah’s rules in 2020 opted for less restrictions than Model Rule 7.3.

I think the proposed restriction on a lawyer’s ability to contact a new client could have some serious unintended consequences. I understand the need for a narrowly tailored rule that protects people, for example, who have been injured in an automobile accident, from being bombarded with requests from lawyers to represent them. Some limitation on this type of unwelcomed contact may be a good thing.

My area of practice is insurance defense. My book of clients (healthcare providers and insurance companies) changes ever so slowly as new clients enter the marketplace and older clients move into different areas of the country or change their panel counsel. It is quite common for insurance defense lawyers to contact a potential new client (insurance company) to request the insurance company consider placing the lawyer on their panel of attorneys. This is a customary and common practice. There is nothing overbearing or unprofessional about this type of communication with a potential insurance carrier client. Large corporations also maintain a panel of counsel for various needs. In the last year, my office reached out to several insurance companies and healthcare providers/insurers to see if they were adding to their panels of attorneys. Several politely said they were not. However, one potential new client welcomed our inquiry, and placed our firm through a rigorous application process. After several months, we were pleasantly added to this insurance providers panel of attorneys and are now working for them. This is a great thing for our firm and for our new client.
If this new rule is implemented unrevised, it appears a strict application of this rule would disallow our firm from reaching out to new insurance carrier clients or companies and asking to be placed on their panel list of firms.
I trust the committee will look closely at this rule and more narrowly tailor it for its intended purpose.

Thank you.

This amendment seems overly broad and would restrict many common types of referrals. For example, if an attorney attends a Chamber of Commerce networking event and is speaking to someone who mentions their need for a Will, can the attorney state that she is an estate planning attorney and/or offer her services to draft a Will for that person? Similarly, can an estate planning attorney who is given the name and contact information of a person who would like to have their Will drafted by the potential client’s financial advisor, not necessarily a friend or family member, then contact that potential client if the potential client is expecting a call?

The Utah State Bar’s Ethics Advisory Opinion Committee met on March 14, 2023 and considered the proposed amendments to Rule 7.1 regarding solicitation. The Committee voted unanimously to submit the comments below. Individual members who have no ethical constraint also wished to have their names listed (below) and, for informational purposes only, their employers.

I. The Amendments Unconstitutionally Fail to Permit Solicitation for Political / Ideological Causes

The amendment as it is presently written would appear to prohibit solicitation for political or ideological representation. Such prohibition would constitute a violation of the First and Fourteenth Amendments to the U.S. Constitution and likely the Open Courts provision of the Utah Constitution.

In NAACP v. Button, 371 U.S. 415 (1963), the Supreme Court of Appeals of Virginia held that the NAACP and its attorneys had no constitutional right to solicit prospective litigants to authorize the filing of suits by NAACP-compensated lawyers. The U.S. Supreme Court reversed, saying: “We hold that the activities of the NAACP, its affiliates and legal staff shown on this record are modes of expression and association protected by the First and Fourteenth Amendments which Virginia may not prohibit, under its power to regulate the legal profession, as improper solicitation of legal business violative of [state law] and the Canons of Professional Ethics.” Button, 371 U.S. at 428-29. The Court further held that solicitation of prospective litigants to further civil rights objectives came within the right “to engage in association for the advancement of beliefs and ideas.” Id.

In 1978, the U.S. Supreme Court decided In re Primus, 436 U.S. 412, in which a private attorney, who was also a cooperating attorney with the ACLU, had contacted a woman who had been sterilized against her will and offered to represent her in a suit against the doctor. The South Carolina Supreme Court had held that the solicitation warranted discipline and the attorney appealed to the U.S. Supreme Court. While the South Carolina court had distinguished NAACP v. Button because the ALCU had the primary purposes of rendering legal services and regularly requested fees where it prevailed, the U.S. Supreme Court rejected that reasoning. Primus relied upon NAACP v. Button, holding that the attorney’s letter to the prospective client “comes within the generous zone of First Amendment protection reserved for associational freedoms.” 436 U.S. at 431.

Ethics experts Hazard, Hodes & Jarvis comment on the breadth of the Primus decision: “This approach [reliance on NAACP v. Button] strongly suggests that the Court meant to go beyond the precise facts of Primus and to authorize even in-person contacts in political or ideological cases.” THE LAW OF LAWYERING, § 61.04 (2019-1 Supplement).

On the same day the Supreme Court decided Primus, it also addressed whether the Ohio bar could constitutionally prohibit in-person solicitation of an accident victim. Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978). The Court held that a state or its bar “constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent.” 436 U.S. at 449. These dangers of in-person solicitation included overreaching, undue influence, invasion of privacy, and lawyers’ exercise of judgment being clouded by their own pecuniary interest. Id. at 461-62. The Supreme Court approved of rules against in-person solicitation as “prophylactic measures whose object is the prevention of harm before it occurs.” Id. at 464.

In light of the Supreme Court’s rulings in Primus and Ohralik, the ABA redrafted its Model Rules of Professional Conduct: “A lawyer shall not solicit professional employment by live person-to-person contact when a significant motive . . . is the lawyer’s or law firm’s pecuniary gain [with exceptions for lawyers, family, friend, former clients].” Rule 7.3(b).

The ABA’s formulation also wisely permits solicitation by nonprofit service providers who do not charge fees to clients but offer legal information and representation to low-income clients or clients with disabilities.

Amending the current draft of Rule 7.1 to target only representation for pecuniary gain would render it constitutional.

II. The Amendments Likely Unconstitutionally Prohibit Commercial Speech that is not Live, In-Person

An earlier version of the ABA Model Rules of Professional Conduct prohibited targeted mail advertising:

A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, by mail, in-person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. The term “solicit” includes contact in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful. MRPC 7.3 (1984)

In Shapero v. Kentucky Bar, 486 U.S. 466 (1988), the U.S. Supreme Court held that a state could not, consistent with the First and Fourteenth Amendments to the U.S. Constitution, categorically bar lawyers from soliciting legal business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal issues.

In analyzing that version of Model Rule 7.3, the Court noted that since its decision in Bates v. State Bar of Arizona, 433 U.S. 814 (1977), “lawyer advertising is in the category of constitutionally protected commercial speech.” Shapero, 486 U.S. at 472. “Commercial speech that is not false or deceptive and does not concern unlawful activities . . . may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest.” Id. (quoting Zauderer. v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 638 (1985)).

In Shapero, the Court also referenced its decision in Ohralik in which it held that a state may categorically ban in-person solicitation:

We distinguished written advertisements containing such information or advice from in-person solicitation by lawyers for profit. . . . The “unique features of in-person solicitation by lawyers [that] justified a prophylactic rule prohibiting lawyers from engaging in such solicitation for pecuniary gain,” we observed, are “not present” in the context of written advertisements.” Shapero, 486 U.S. at 472 (quoting Ohralik).

While the Kentucky bar argued that targeted, direct-mail solicitation had a serious potential for abuse because these prospective clients may be overwhelmed by their problems and have impaired capacity for good judgment, the Court held:

In assessing the potential for overreaching and undue influence, the mode of communication makes all the difference. . . Our decision in Ohralik that a state could categorically ban all in-person solicitation turned on two factors. First was our characterization of face-to-face solicitation as a “practice rife with possibilities for overreaching, invasion of privacy, the exercise of undue influence, and outright fraud.” [quoting Zauderer] . . . Second “unique . . . difficulties” . . . would frustrate any attempt at state regulation of in-person solicitation short of an absolute ban because such solicitation is “not visible or otherwise open to public scrutiny.” Shapero, 486 U.S. at 475 (quoting Zauderer and Ohralik).

The Court in Shapero permitted the targeted, direct-mail solicitation because it did not involve “‘the coercive force of the personal presence of a trained advocate’ or the ‘pressure on the potential client for an immediate yes-or-no answer to the offer of representation.’” Shapero, 486 U.S. at 475 (quoting Zauderer).

The proposed amendments to Rule 7.1 must be read with the holding of Shapero in mind. While both “(1) in-person contact” and “(2) telephone call” can be prohibited under the logic of Shapero, “text, email, fax” and certain other “electronic communications” are more like letters and advertisements that do not involve the coercive personal presence of a trained advocate or pressure for an immediate response. Moreover, all such written communications would be “open to public scrutiny” and thus not frustrate any attempts at the bar’s oversight for overreaching.

III. There Are Better, Constitutional Ways to Regulate Solicitation that May Offend Clients.

It appears that the proposed changes to Rule 7.1 were motivated, at least in part, by alleged over-reaching by certain personal injury lawyers. If the goal is to protect victims from a wide range of such over-reaching, we would recommend that a rule be crafted based upon the Florida rule that passed constitutional muster in Florida Bar v. Went for It, 515 U.S. 618 (1995).

The Florida bar had prohibited personal injury lawyers from sending targeted or direct-mail solicitations to victims and their relatives for 30 days following an accident or disaster. Went for It, 515 U.S. at 620. The U.S. Supreme Court held that this limitation was a constitutionally reasonable restraint of commercial speech. Id. at 620, 635.

The language of the Florida rule was:

Rule 4-7.4(b)(1) provides that “[a] lawyer shall not send, or knowingly permit to be sent, . . . a written communication to a prospective client for the purpose of obtaining professional employment if: (A) the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing of the communication.” Florida Bar v. Went for It, 515 U.S. at 620.

The Went for It Inc. lawyer referral service challenged the rule as violative of the First and Fourteenth Amendments. 515 U.S. at 621.

In its decision in Went for It, the U.S. Supreme Court held that while lawyer advertising was protected commercial speech, First Amendment protections were “not absolute.” Id. at 623. Employing an intermediate level of scrutiny, the Court stated that commercial speech may be regulated if the government asserts a “substantial interest” in support of its regulation, demonstrates that the restriction “materially advances that interest,” and the regulation is “narrowly drawn.” Id. at 624. The Court stated that States have a compelling interest in regulating the practice of law and that protection of potential clients’ privacy is a substantial interest. Id. at 625. The Florida bar had conducted a two-year study and had data that supported the conclusion that “the Florida public views direct-mail solicitations in the immediate wake of accidents as an intrusion on privacy that reflects poorly upon the profession.” Id. at 626. The Court noted that lawyers have multiple ways to communicate with the general public about their services and found that Florida’s regulation was sufficiently “narrow in both scope and in duration” to be constitutional. Id. at 634-35.

We suggest that rather than banning anything other than direct, real-time solicitation in person, the Utah bar consider a ban like the one that passed constitutional muster Florida Bar v. Went for It.

Utah State Bar’s Ethics Advisory Opinion Committee

John Snow, Parsons Behle & Latimer (Chair)
Sara Bouley, Action Law LLC (Vice Chair)
Kif Augustine-Adams, Professor of Law, J. Reuben Clark Law School, Brigham Young University
Liisa Hancock, Jeffs & Jeffs, P.C.
Scotti Hill, Utah State Bar (staff to Ethics Advisory Opinion Committee)
Neil Kaplan, Clyde Snow
Aline Longstaff, Snell & Wilmer
Kenneth Lougee, retired
Linda F. Smith, Professor Emerita, S.J. Quinney College of Law, University of Utah
Tyler S. Young, Young, Kester, Black & Jube

It is entirely unclear what problem this rule change is trying to solve. As currently written, Rule 7.1 already prohibits interactions that involve coercion, duress, or harassment. And Comment 6 to Rule
7.1 makes clear that lawyers should proceed with caution in face-to-face or other real-time communications in order to avoid coercion, duress, or harassment. The proposed rule change contains no indication as to why the current rule needs to be changed.

To the extent the committee has identified a legitimate problem that needs redress, the committee should carefully tailor its proposed change to address that specific problem. For example, several commenters have noted that there might be a specific need to protect persons who have been injured in an accident. If that’s true, then the committee’s proposed change should address that need in a thoughtful, directed manner, such as proposing a provision specific to personal injury cases—as many other states have done.

As drafted, however, this proposed change uses a sledgehammer to crack a nut.

The proposed rule is extremely restrictive, apparently prohibiting lawyers from engaging in any form of solicitation besides: (1) soliciting friends and family and (2) distributing general advertising materials. As others have pointed out, it would disallow many forms of solicitation that are commonplace and pose no risk to consumers—such as the solicitation of sophisticated consumers of legal services, including both Utah’s burgeoning startups and its long-time economic mainstays. If anything, this proposed change seems to harm consumers, severely limiting the flow of information about legal services. This alone is reason to reject the proposed change.

Not only would the proposed change harm consumers, it would also harm every lawyer admitted to practice in Utah. As several others have noted, the proposed rule is far more restrictive than ABA Model Rule 7.3, which allows for solicitation by asynchronous means and permits solicitation of persons who routinely utilize legal services (e.g., sophisticated businesses). But the proposed rule is not just more restrictive than the ABA Model Rule, a review of analogous rules across the country reveals that this would be the most restrictive solicitation rule in the entire country. This would place Utah lawyers at a significant disadvantage vis-à-vis non-Utah lawyers. Under the proposed rule, a non-Utah lawyer could pitch for new business with Utah-based clients, but a Utah lawyer could not. This makes no sense.

In sum, Rule 7.1 already prohibits lawyers from coercing and harassing potential clients. If the committee has identified a gap in the current rule, then it should identify that gap and narrowly fill it. But as drafted, the proposed rule change would only cause harm to both consumers and Utah lawyers. It should be rejected.

Christine Durham
Michael Zimmerman
Thomas Lee
Deno Himonas
Troy Booher
Cherise Bacalski
David Reymann
Jonathan Hafen
Amy Sorenson
Mark Morris
Matt Lalli
Marc Porter
Greg Watts
Matt Squires
Alison Johnson

On behalf of my firm, Dentons Durham Jones Pinegar P.C., I submit this comment in opposition to the proposed amendments to Rule 7.1. As drafted, the proposed amendments are overly restrictive and will have the effect of eliminating countless forms of legitimate, non-coercive business development strategies which reputable Utah lawyers have relied on for many years.

The vague and expansive prohibitions in the proposed language would essentially prohibit nearly all communications with potential clients done for the purpose of obtaining professional employment. Many attorneys attend events in their community for the purpose of, at least in part, developing business opportunities and connecting with potential clients. Attorneys often develop business connections outside of their circle of friends, relatives, and current clients by serving on non-profit boards or other community organizations, speaking at trade conferences, or simply attending social functions where potential clients may be in attendance. Under the proposed amendment, communications with such individuals for the purpose of gaining professional employment could be considered a violation of the Rule.

Furthermore, the proposed language could prohibit attorneys in some circumstances from communicating with potential clients regardless of who initiated the communications. As a result, one could argue that an attorney responding to a governmental entity’s Request for Proposals for legal services would violate the proposed rule, or even simply responding to a cold call from a potential client, regardless of whether the potential client initiated the contact.

It is my understanding that the UAJ’s petition for the amendment was based on concerns about “aggressive, inappropriate, or uninvited solicitation at an injury scene or hospital” involving victims “harmed by the fault of others.” However, Rule 7.1 already prohibits attorneys from communicating in a way that involves “coercion, duress, or harassment,” which sufficiently protects the public from potentially predatory business development practices. But in our many collective years of practicing law in the State of Utah, it is apparent to us that many of our fellow attorneys have been using business development strategies like those described in the preceding paragraphs in a way that helps, rather than hurts, our clients and community. If there are concerns about some attorneys engaging in predatory practices, any changes to the Rule should be targeted towards that specific behavior only.

Finally, it appears that the limitation on communications will violate First Amendment rights by limiting certain forms of constitutionally protected speech, including commercial speech.

For these reasons, we submit no alteration to the current rule is necessary and the proposed amendments should be rejected.

Joshua E. Little
President and Chief Executive Officer
Dentons Durham Jones Pinegar P.C.