April 2017 • Volume 105 • Number 4 • Page 50
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Ethics and Airport Lawyers
Here's why the prohibition against in-person solicitation almost certainly didn't apply to lawyers who advertised their services in response to President Trump's immigration order.
This past January, many newspapers carried stories of lawyers at airports, including O'Hare, offering assistance to immigrants and their families in light of the January 17 Presidential Executive Order on immigration. The stories were often accompanied by photos of lawyers holding up hand-written signs saying things like "Need a Lawyer?" or "Lawyers Here to Help." Burdened to view the world through the lens of legal ethics, my first thought was, "Isn't this improper in-person solicitation?"
Let me begin by saying what occurred at some of the nation's airports probably wasn't improper solicitation…but it could have been. Illinois Rule of Professional Conduct ("IRPC") 7.3 governs in-person solicitation of clients - like showing up at an airport (or courthouse or hospital) with a sign that says "need a lawyer?"
IRPC 7.3(a) provides that "a lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain…." A solicitation is described in Comment  to Rule 7.3 as "a targeted communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services."
In-person solicitation is improper because it may foster "undue influence, intimidation, and over-reaching" by the lawyer. IRPC 7.3, Comment . It is also detrimental because it "both restricts and manipulates the choice of counsel available to potential clients." In the Matter of A.S., 05-CH-35 (ARDC Hearing Board July 19, 2007). Oh, and the Illinois Supreme Court has called in-person solicitation "reprehensible and inimical to the traditions and best interests of the legal profession." In re Krasner, 32 Ill. 2d 121 (1965). So, if you are in a place with people who are in need of legal services, and you are holding up a sign hoping to sign up new, and profitable, clients, you are crossing a very clear line.
However, as attentive readers will have noted, Rule 7.3 permits in-person solicitation that is not significantly motivated by a lawyer's pecuniary gain. After all, as Comment  (and case law) tells us, it is the drive for pecuniary gain that can lead to abusive practices. (There are a couple of other exceptions spelled out in IRPC 7.3(a) as well but they aren't applicable here.)
Whether a lawyer volunteer for a not-for-profit organization that ultimately might be awarded a fee can engage in in-person solicitation was decided in the 1978 U.S. Supreme Court case of In re Primus, 436 U.S. 412 (1978). In Primus, a South Carolina lawyer volunteering for the ACLU met with several women who had been sterilized, or threatened with sterilization, as a condition of continued medical assistance under Medicaid. Lawyer Primus advised the women of their legal rights and suggested the ACLU's availability to file suit. Primus also sent a letter to a specific recipient indicating that the ACLU wanted to file suit on her behalf. For this solicitation, Primus was publically reprimanded.
The U.S. Supreme Court reversed the discipline and noted that the ACLU engages in litigation as an effective vehicle for political expression and association as well as having the effect of communicating useful information to the public. The Court reiterated the "principle that collective activity undertaken to obtain meaningful access to the courts is a fundamental right within protection of the First Amendment." Primus, 436 U.S. at 426. It went on to say: "[T]he First and Fourteenth Amendments require a measure of protection for 'advocating lawful means of vindicating legal rights,' including [advising] another that his legal rights have been infringed and [referring] him to a particular attorney or groups of attorneys…." Primus, 436 U.S. at 432.
Illinois disciplinary precedent has also addressed in-person solicitation for protected associational purposes. In a 1979 case that predates the IRPC, but is post-Primus, an Illinois lawyer was asked by a local pastor to meet with low-income, primarily minority individuals who had been harmed by a train explosion. These individuals were being pressured by railroad agents to sign settlements and release claims. The lawyer met with several individuals and a few signed contingent-fee contracts.
The Illinois Supreme Court said this was solicitation but, notwithstanding the lawyer's predominately pecuniary motive, the conduct was constitutionally protected. The court found it critical that the pastor's conduct in seeking out the lawyer was not part of a façade to facilitate the lawyer's remunerative employment, but instead a bona fide relief effort created to further the community's independent interests. In re Teichner, 75 Ill. 2d 88 (1979).
The court's analysis was not without criticism from one concurring justice who was troubled by the absence of any formal sponsoring organization on whose behalf the lawyer was working. Under the current IRPC, the importance of a sponsoring organization is echoed in IRPC 7.3, Comment .
This Comment makes it clear that the rule is not intended to prohibit in-person solicitation under the "auspices of public or charitable legal services organizations or bona fide political, social, civic, fraternal, employee or trade organizations whose purposes include providing or recommending legal services to their members or beneficiaries." In any event, to the extent a lawyer appears and engages in in-person solicitation on a pro bono (or near pro bono) basis, or is associated with one of the organizations described in Comment , it would appear that such conduct does not run afoul of the IRPC.
As a final word, solicitation is not the only ethical issue that comes into play when lawyers seek to exercise their political or social beliefs. If the lawyers are representing clients, even pro bono, they need to be competent. Also, as with any representation, conflict-of-interest rules apply. Of particular note here is IRPC 6.5, which applies less stringent conflict-of-interest rules when a lawyer is providing short-term limited legal services on behalf of a court or nonprofit organization.
Lawyers are not prohibited from using their legal training and skills to support causes or values they deem important. In fact, some may argue it is a responsibility. See IRPC Preamble, Comment [6A]. However you view your involvement as a lawyer in social or political causes, just be sure that your desire to help does not result in ethical problems.
Charles J. Northrup is the ISBA general counsel.