Networking Can Be An Ethical Landmine. Be Careful.

Done right, networking is essential for growth; Done wrong, networking can be unethical

For solo lawyers in almost all practice areas, success depends on the relationships you develop through personal networking. Many of you already know that and are actively networking. What you may not know is that a lawyer’s networking activities are governed by ethics rules. While my goal is clearly not to inhibit your networking efforts or put a damper on your enthusiasm for interaction with potential clients or referrers of clients, I do want to point out some of the ethics rules so you will be more aware of these tripwires that land unsuspecting lawyers in hot water.

Each state bar has its own rules of professional conduct, based on the ABA Model Rules of Professional Conduct. Despite some differences from state to state, the rules about networking are very similar to what the ABA recommends.

While the word “networking” itself does not appear in the language, state rules address business development and the solicitation of new clients – which is certainly a primary goal of networking. All lawyers seem to know the “rule” that attorneys are not supposed to chase ambulances. But what does that really mean?

According to ABA Model Rule 7.3, lawyers cannot “solicit professional employment from a prospective client” in person, by telephone or by real-time electronic contact — unless the person being solicited is a lawyer or has a “family, close personal, or prior professional relationship with the lawyer.”

From my extensive experience, lawyers misunderstand four major components of Rule 7.3 as it relates to networking for new business.

First, lawyers erroneously believe that the rule applies only to hospital emergency rooms. In fact, the rule applies to personal contact in any type of room in any kind of building. In addition, these rules govern phone contact and even interactive online contact.

Second, lawyers believe it is usually appropriate to solicit a “sophisticated” client, like a small business owner or executive. In fact, there is no such exception in the rule. While it’s likely that the rule was created to protect unsophisticated clients in hospitals, it is not written that way. If you learn that a company is being sued, and call asking to be considered as defense counsel, and the exceptions listed above don’t apply, then you violate Rule 7.3.

Third, lawyers often misunderstand ethics at the intersection of networking and the referral process. Successful networkers frequently receive calls saying, “My friend really needs your help. Here’s the phone number. Give him a call.” Think twice before you make this kind of call. Do not assume that a referral means consent.

When someone is nice enough to refer you to a potential client, thank the referral source and then let the referrer know that ethics rules prohibit you from making the initial contact. You could face disciplinary action for doing so. Ask the referral source to please forward this information to the potential client and have the client call or email you instead.

Fourth, many lawyers ask about the ethics of picking up the tab for a meal or entertainment for a referral source. Rule 7.2(b) states that “a lawyer shall not give anything of value to a person for recommending the lawyer’s services.” Are courtside seats worth $500 considered “anything of value” in this context?

Under most circumstances, the answer is no. Most state regulatory bodies would view client entertainment expenses as an accepted form of business development effort – as long as there is no explicit quid pro quo for the entertainment. You would not want to state, “Client X, thank you very much for that case. Since you gave me that business, my firm will take your entire family to the circus. “

There are countless business articles and books that discuss how to network — and the importance of “asking for the business” when you network. While this advice applies to most business people, it can get lawyers in trouble. Under some circumstances, simply “asking for the business” can violate rules of professional conduct and subject you to discipline. Don’t be afraid to cultivate business. That’s not the point of this post. However, know your professional boundaries so you can enjoy networking knowing you are in full compliance with the rules.

All opinions, advice, and experiences of guest bloggers/columnists are those of the author and do not necessarily reflect the opinions, practices or experiences of Solo Practice University®.

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4 comments on “Networking Can Be An Ethical Landmine. Be Careful.

  • I wish more attorneys knew about these rules. I have had to tell attorneys that they cannot just give me the potential client’s telephone number or e-mail address because it is unethical for me to contact them directly. Each time they felt I was mistaken. i called The Florida Bar and they confirmed that it would be unauthorized solicitation. The problem here is that I suspect the attorneys will just give the referral info to another attorney that does not require that they take the extra step of contacting the potential client and explaining that they need to contact the attorney directly.

    • Dennis, the problem is when someone takes the time to give a referral they believe they have done a great thing for both the friend and the lawyer. The friend appreciates the connection being made for them. They want the lawyer to have the same reaction – not give them more work (and you being lazy), which is how they see it and they feel a little upset for putting themselves out there. It’s important to have a way of expressing these issues without coming across as unappreciative – or in the case of other attorneys – superior because you are respecting the rules!

  • Dennis, I think attorneys need to be mindful of the advertising/solicitation rules, but they shouldn’t take a risk-adverse, compliance-minded approach to them in every instance. Regardless of how the rules may read, they are significantly limited in their application by the first amendment.

    It’s also important to note that e-mail presents much less of an issue. The ABA Model Rules and most states limit anti-solicitation provisions to in-person, telephonic and “real-time electronic” contact only, on the theory that such forums leave the consumer defenseless against the attorney’s persuasive powers.

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