In re Disciplinary Action Against Bullis, 2006 ND 228, ¶ 19-
20, 723 N.W.2d 667 (quoting Giese, 2003 ND 82, ¶ 22, 662
N.W.2d 250) (internal citation and quotation marks omitted).
Question 3. If claims are being purchased in toto (i.e., no legal
claim remains with seller), are requests to purchase claims for later
litigation on behalf of the purchaser/lawyer considered solicitation
of professional employment in violation of Rule 7.3?
The answer depends on the facts and circumstances. Even though
the Rules of Professional Conduct do not prohibit these types of
transactions with non-clients, other Rules indirectly apply.
If the lawyers undertake some solicitation or marketing efforts, then
Rule 7.3 applies. Rule 7.3 provides in pertinent part:
(a) A lawyer, or the lawyer's representative, shall not by in-
person or telephone contact, or other real-time contact, solicit
professional employment from anyone known to be in need of
legal services in a particular matter when a significant motive for
the solicitation is the lawyer's pecuniary gain unless the person
contacted:
(1) is a lawyer; or
(2) has a family, personal, or prior professional relationship
with the lawyer.
(b) A lawyer shall not solicit professional employment by
written, recorded, or e lectronic communication or by in-person,
telephone, or real-time contact even when not otherwise
prohibited by paragraph (a), if:
(1) the target of the solicitation has made known to the
lawyer a desire not to be solicited by the lawyer;
(2) the solicitation involves coercion, duress, or harassment;
or
(3) the receipt of the solicitation is uninvited and imposes
any involuntary economic cost on the prospective client to
respond to the solicitation.
N.D.R.Prof.Conduct 7.3.
Section 7.3(a) prohibits lawyers from contacting prospective
clients by in-person, telephone, or real-time contact under certain
circumstances. See id. Rule 7.3(a)’s spirit is to protect against the
exploitation of the general public:
The lawyer is a trained advocate and the client in need of legal
services may be emotionally vulnerable. As a result, a person
in need of legal services, who may be overwhelmed by the
circumstances giving rise to the need for legal services, may
find it difficult to fully evaluate all available alternatives with
reasoned judgment in the lawyer's presence and insistence
upon immediate retention. Such a situation is fraught with
the possibility of undue influence, intimidation, unaccountable
misrepresentation, and overreaching.
N.D.R.Prof.Conduct 7.3 cmt. 2. Comment 1 further suggests Rule
7.3(a) should be applied from the prospective client’s perspective:
A solicitation is 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.”
N.D.R.Prof.Conduct 7.23 cmt. 1.
CONCLUSION
The facts and circumstances determine whether the in-person,
telephone, or real-time contact is prohibited by Rule 7.3(a). If the
lawyer’s communications are such where the person contacted
reasonably understands the lawyers to be soliciting employment as
an attorney instead of soliciting the purchase of the claim, then such
contact is prohibited by Rule 7.3(a). If the lawyer’s communications
are such where the person contacted believes the lawyer to be
soliciting the purchase of a claim instead of soliciting employment,
then such contact is not prohibited by Rule 7.3(a).
Rule 7.3(a) puts the lawyer in the difficult, if not impossible,
position of having to know the person’s capacity to understand the
difference between employment and transaction before making the
communication. While an objective standard is built into Rule 7.3(a),
the lawyer is always going to have difficulty explaining the distinction
because this type of relationship is unusual. The general public may
have difficulty in understanding the difference between a lawyer
representing his or her interests and a lawyer purchasing a claim.
Attorneys purchasing choses in action are not in the ordinary course
of law firm business. Even if one person reasonably misunderstands
the nature of the relationship, the lawyer violates Rule 7.3(a). It is our
opinion that the facts and circumstances control and the lawyer can
do much to make sure the person contacted understands the nature
of the relationship, but we caution the lawyer against such contact
because of the high risk of reasonable misunderstandings
This opinion was drafted by Adam Wogsland and was unanimously
approved by the Ethics Committee on the 4th day of June, 2018.
These opinions are provided under Rule 1.2(b), North Dakota Rules for
Lawyer Discipline, which states:
A lawyer who acts with good faith and reasonable reliance on a
written opinion or advisory letter of the ethics committee of the
association is not subject to sanction for violation of the North Dakota
Rules of Professional Conduct as to the conduct that is the subject of
the opinion or advisory letter.
SUMMER 2018
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