Ethics Opinion

Opinion No. 93-5

May 1993

Summary: DR 2-103 prohibits a lawyer representing a single client from telephoning potential co-plaintiffs to suggest that they join the litigation. DR 2-103 requires that any written communication for such purpose be labeled "advertising" in accordance with the rule. It also prohibits a lawyer from suggesting to his client that the client call prospective co-plaintiffs to hire the lawyer to represent them in the litigation. Nevertheless, the legislative history of DR 2-103 also suggests that if the proposed litigation is in the nature of a class action, the rule is not intended to prohibit forms of contacting prospective plaintiffs permitted under applicable class action law.

Facts: Lawyer desires to request potential claimants to join in suits against the sponsor of various tax-oriented limited partnerships. He asks three questions about professional responsibility problems in contacting investors in these limited partnerships, who are not currently his clients.
(1) "Must any written communication from our firm to the investors contain the word 'advertisement' on the envelope?"
(2) "May our firm contact investors by telephone?"
(3) "May our client contact other investors and inform them that his attorney may be contacting them?"
Discussion: The answers to all three questions are governed by DR 2-103 and DR 1-102(A)(2).
DR 2-103 provides, in part:
(C) A lawyer shall not solicit professional employment for a fee from a prospective client by written communication ... directed to such prospective client unless:
(1) each such communication is clearly labeled 'advertising' on its face and on any envelope or container ...
(D) A lawyer shall not solicit professional employment for a fee from a prospective client in person or by personal communication by telephone, electronic device, or otherwise.
DR 1-102(A)(2) provides:
(A) A lawyer shall not: (2) Circumvent a Disciplinary Rule through actions of another.
On the face of these rules, the answers to the inquiring lawyer's three questions appear to be (1) yes, (2) no, and (3) yes and no.
Question (1): The inquiring lawyer states that, in his view, the proposed communication is not an advertisement because he is informing investors of a potential claim of which they might not otherwise be aware. The issue with respect to question (1), however, is not whether in some technical sense the proposed letter would constitute an "advertisement." The question is whether the letter would constitute solicitation of professional employment for a fee from a prospective client. If so, then the rule itself requires that the word "advertisement" be used on the letter and its envelope. Although the lawyer may be informing investors of potential claims of which they may not be aware, it is apparent from his description that a purpose of so informing them is to solicit their employment of him for a fee. That triggers the labeling requirement of DR 2-103(C).
Question (2): The response to question (1) answers question (2). DR 2-103(D) clearly prohibits telephone solicitation of professional employment for a fee.
Question (3): DR 1-102(A)(2) is the relevant rule governing question (3). While the Disciplinary Rules do not govern the client's conduct, they do govern the lawyer's relationship with the client. Thus, while the client might, on his own, seek to gather a group of investors to join him in hiring the lawyer to represent them as plaintiffs and while the client would not be required to label a letter communication to such a group as "advertising," the lawyer may not suggest or participate in the effort. See our Opinion 82-8 in which we discussed what causing another to violate a disciplinary rule meant in the context of settlement discussions.
Having addressed the three questions on the basis of the language of the rules, we would now like to suggest an alternative approach based upon the particular facts of the present inquiry and the legislative history of DR 2-103. Prior to the 1986 amendment of DR 2-103, DR 2-103(A) prohibited all personal or mail solicitation of professional employment and then added the following two sentences:
But if success in asserting rights or defenses of his clients in litigation in the nature of a class action is dependent upon the joinder of others, a lawyer may accept employment from those he is permitted under applicable law to contact for the purpose of obtaining their joinder. However, this disciplinary rule does not prohibit a lawyer or a partner or associate or any other lawyer affiliated with the lawyer or the lawyer's firm from requesting referrals from a lawyer referral service operated, sponsored, or approved by a bar association or from cooperating with any other qualified legal assistance organization.
The Supreme Judicial Court's Committee on Lawyer Solicitation, whose recommendations formed the basis for the current Disciplinary Rule 2-103 (although all its recommendations were not adopted), recommended a subparagraph (F) that consisted, in virtually identical form, of the two sentences of former DR 2-103(A). When the Supreme Judicial Court promulgated new DR 2-103, it moved the language of its committee's paragraph (F) into paragraph (E), but eliminated the first sentence relating to the "applicable law" of class actions.
The question remains whether the Supreme Judicial Court intended a substantive change by the elimination of that sentence or removed the language on the ground that it was superfluous because other "applicable law" would still be controlling. We believe that the latter interpretation is the correct one. Giving substantive effect to the elimination of the quoted sentence might well diminish the amount of permitted solicitation whereas the purpose of amendment of the rule, which was adopted in large part because the prior rule was thought to be unconstitutional, was to accomplish a substantial increase in the amount of permitted solicitation. Moreover, while many briefs were filed taking issue with particular committee recommendations and while there was extensive discussion of many of those recommendations at oral argument, the quoted sentence was not discussed at all. The Supreme Judicial Court in its opinion also took great pains to discuss why it was rejecting the one major recommendation of the committee that it did not accept, but it did not say one word about the elimination of the quoted sentence. In the Matter of Amendment to SJC Rule 3:07, DR 2-103 and DR 2-104, 398 Mass. 73 (1986). Our inference therefore is that the SJC concluded that the sentence's permission of contact that is permissible "under applicable law" was adequately covered by that applicable law and did not also need to be mentioned in the Disciplinary Rules.
Our conclusion from this lengthy discussion is that if the lawyer is contemplating litigation in the nature of class action litigation and if the applicable law governing that class action litigation permits contact of prospective clients in ways that would otherwise be prohibited by the Disciplinary Rules, then the Disciplinary Rules would not prohibit such methods of contact. Our committee is prohibited by its rules from giving advice on issues other than professional responsibility matters. The lawyer will therefore have to decide whether his proposed litigation is governed by substantive and procedural law that permits the methods of contact mentioned in his questions. If so, or if the lawyer thinks that there is a substantial issue whether it is so, perhaps the safest way to proceed is to request court permission for the specific methods of client contact that he wishes to employ.

Permission to publish granted by the Board of Delegates on March 23, 1993. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.