Some of the most fundamental rules governing the ethics of lawyers relate to attorney advertising. Don’t over-promise in your ads, include basic disclaimers, and never offer your services to someone you know is already represented.
So what do you do when another lawyer is trying to solicit your client?
On the one hand there is the issue of whether to report unethical conduct to the proper regulators. In brief, in many states there is some obligation (or at least encouragement) to report lawyers who violate the rules.
On the other hand, there is the issue of keeping your client while still meeting all of your own ethical duties.
Determine Your Client’s Knowledge
The Unsophisticated Client: Some clients are not particularly sophisticated, especially when hiring lawyers, and will not realize the issues raised by solicitation. They may be easily swayed to hire the soliciting lawyer without realizing the impact on their own case and fees. Of all the types of clients, it is this one you need to be most concerned about protecting their interests, beyond protecting your own bottom line.
The Sophisticated Client: Other clients hire lawyers routinely, and do so primarily for business reasons. They understand the game well enough to know that there are lots of lawyers out there, and will be less easily sucked in.
The Lawyer Client: Some clients are lawyers themselves, and they understand exactly what the soliciting lawyer is doing and the unethical nature of the conduct. They are likely to be as peeved as you are by the contact.
Determine the Offense
If the contact from the soliciting lawyer is a simple flyer or letter offering services in a very general way, much like the letters often sent to people who have gotten traffic tickets, it is far less likely to cause any issues between you and your client.
Consider, though, the soliciting lawyer who presents to your client a specific idea or general impression that implies you may be failing at your job. An ethics defense lawyer knows that the state bar has jurisdiction over lawyers practicing in the state and licensed by the bar. He also knows that lawyers facing bar prosecution chaff at the idea. The lawyer’s client, also an attorney, receives a solicitation pushing the client to hire new counsel and make a motion to dismiss on due process and jurisdictional grounds. The soliciting lawyer claims that the state bar has no authority over the client.
Even a lawyer client (or perhaps especially one) will be intrigued by the prospect of a sexy game-changing jurisdictional argument. If you never addressed this potential argument with the client, and if the soliciting lawyer is being really aggressive, you may have a real issue on your hands between you and your client.
Courses of Action
There are a couple of options on how to proceed. You might call the soliciting lawyer and inform them that your client is represented, but that does not negate the damage already done. The client ultimately has the right to change attorneys at any time, so this will not protect your client relationship.
In an effort to preserve the relationship, you should explain to your client that the soliciting lawyer has violated ethical rules by soliciting them, and who knows what other rules they will violate. That said, be careful with your choice of words. You do not want to inadvertently slander a fellow attorney.
Another explanation owed to your client is the cost involved to switch lawyers. You do not want to imply that you are forcing or pressuring them to stay with you, but you should objectively explain the costs, such as paying the new lawyer to get up to speed on their case. Additionally, you can ask your client if there is any way to improve your services. That is a perfectly acceptable question to ask, and is good business practice.
Finally, consider whether you want to report the attorney to the ethical authorities. In some states it is mandatory to report unethical conduct (those following Model Rule 8.3 as written). In other states it is encouraged but not required to report unethical conduct. Some states are completely silent on the issue, but no state would prohibit you from reporting ethical transgressions.
It is obviously a problem to have other lawyers attempting to poach your business, but in our “gentlemanly profession,” we must also be careful in how we handle it. Clients need our protection from unethical would-be poachers, but they also have a right to choose their counsel. Balance the sophistication of your client with the nature of the soliciting lawyer’s conduct, and you will find the appropriate action to cover all your bases, protect your client, and hopefully keep your business.