My wife and I watch the NBC television show Medium. Recently, the main character's husband, Joe DuBois, was held hostage along with other co-workers at his workplace by a gunman. The gunman killed two of Joe's co-workers before the police could stop him. Needless to say, Joe has had difficulties coping with what he witnessed.
What does this have to do with law? Well, last week Joe received a call on his cell phone from an attorney promising him "millions of dollars" for what he experienced at his workplace, obviously implying that this money would come from a lawsuit against Joe's employer. Joe had no idea who this attorney was and certainly never did anything to solicit the phone call. Disgusted, Joe hung up on the attorney.
This scene prompted my wife to ask me if it was proper for an attorney to make such a call to a prospective client. The answer, in my opinion, is absolutely not.
The Arkansas Rules of Professional Conduct are the ethical guidelines that attorneys must follow in the state of Arkansas. They are largely based on the Model Rules of Professional Conduct of the American Bar Association, which are the guidelines used by most jurisdictions across the country. Rule 7.3 governs the issue of "Direct contact with prospective clients" and provides that "A lawyer shall not solicit, by any form of direct contact, in-person or otherwise, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain."
In my opinion, calling a prospective client and starting the conversation with references to "millions of dollars" certainly indicates that the lawyer's motive is pecuniary in nature, and therefore unethical - not to mention tactless and tasteless. But, hey, it's just a TV show!
However, there is a way that this particular attorney could have contacted Joe and it would have been ethically acceptable. Subsection (b) of Rule 7.3 provides that the attorney may contact the prospective client by "written communication," which assumes by a mailed letter. The subsection goes on to provide that the envelope containing the letter must have the word "Advertisement" in red ink on the bottom left corner of the envelope. There are some other specifics that the lawyer must follow as well, but the point is that a written communication may have been proper in the above example.
This subsection is used extensively by personal injury attorneys in the area of automobile accidents. If you've been involved in an automobile accident recently, you may have received a letter (or several as is usually the case!) in the mail from an attorney wanting to represent you. You may also have asked yourself if it was legal (or ethical) for an attorney to send such a letter. As long as Rule 7.3 is complied with, the answer would be yes.
Here's a link to Rule 7.3... Rule 7.3