An attorney cannot send directed mailing of solicitation to a defendant in a domestic case.

I obtained a list of persons who filed divorce cases and PFAs and I send letters of solicitation asking the person to retain my legal services. Is there anything wrong with that?

Samuel C. Stretton.

Since 1987, lawyers have been allowed to send a directed letter to someone who needs legal services. This is memorialized in Rule of Professional Conduct 7.3(b). This rule arose out of a famous U.S. Supreme Court case that indicated there was a First Amendment right to such contact as long as it was not in person or a real-time electronic communication or telephone communication.

Rule 7.3(b) was a compromise because it was unseemly for lawyers to knock on someone's door if they were injured or visit them in the hospital and things of that nature. But the law allowed lawyers to send directed letters. For instance, if a lawyer reads or hears that someone fell on the sidewalk and was injured, the lawyer could send them a letter or an email advising them that the lawyer was available for consultation if the client chooses. Similarly, if a lawyer finds out someone has been arrested for a crime, such a letter can be sent. If there is a foreclosure action, the lawyer can send a letter, for instance, suggesting they might want to consult the lawyer who does bankruptcy cases.

But there is a limit to how this can be done. Rule 7.3(b) has some exceptions. The first exception precludes a lawyer from doing so if the lawyer knows the person is physically, emotionally or mentally not able to exercise reasonable judgment. The second exception is if the lawyer knows that the person does not desire to receive any communication from any lawyer. The third exception would be in the communication or writing involving coercion, duress or harassment. In other words, there should not be multiple letters.

There is now a fourth exception just added in the last year in September 2018. This exception arose because persons were filing domestic or divorce complaints against a spouse but service had not been made. Lawyers were picking up the filing of the complaint and then sending directed letters to the defendant spouse. As a result, some defendant spouses when notified of the lawsuit acted badly by threatening their spouse or even resorting to a physical assault. The problem was the plaintiff thought until service was made the opposing spouse would not know of the new filing. But the lawyers sending directed solicitation letters alerted the defendant spouse almost immediately.

Therefore, Rule 7.3(b)(4) was added. This rule precludes such solicitation if “the communication is a solicitation to a party who has been named as a defendant or a respondent in a domestic relations action. In such cases, a lawyer shall wait until proof of service appears on the docket before communication with the named defendant or respondent.”

The new Comment 8 to Rule 7.3 notes this applies not only to domestic actions, but to protection from abuse actions. Comment 8 in pertinent parts notes as follows: “In such cases, the defendant/respondent party's receipt of a lawyer's solicitation prior to being served with a complaint can increase the risk of a violent confrontation between the parties. The prohibition in Rule of Professional Conduct 7.3(b)(4) against any solicitation prior to proof of service appearing on the docket is intended to reduce any such risk and allow for the plaintiff to take any appropriate steps.”

This rule makes sense for other reasons. Sometimes people file domestic relations actions and then change their mind. No service is made and the matter is ultimately withdrawn. The defendant spouse does not know of the action. But before this new rule, normally a number of solicitation letters would be sent to the defendant spouse and they would be well aware within a day or two of the filing of the divorce complaint.

The Rules of Professional Conduct involving advertising have the purpose to make legal services available to all and to educate the public as to lawyers who are available to represent them. But sometimes the right to advertise can have adverse consequences as as discussed above in domestic-related cases.

In conclusion, the answer to the question is an attorney cannot send any directed mailing of solicitation to the defendant in a domestic case unless—and until—there is a valid service noted on the docket.

Even if a lawyer goes away, he still must call in and check in on the firm.

I am a senior partner at a law firm. My wife and I plan to take a long vacation and do extensive traveling for approximately two to three months. Can I delegate my supervising responsibilities to the other lawyers in the firm?

The answer is not totally straightforward. The bottom line appears to be that one can delegate responsibilities if they are taking a sabbatical, but the lawyer still has the ultimate responsibility and should check in regularly. The pertinent rules are set forth in Pennsylvania Rules of Professional Conduct. Rule 5.1 sets forth the responsibilities of supervision for partners, managers and supervising lawyers. Rule 5.2 sets forth the responsibilities of an associate or subordinate lawyer. The subordinate lawyer is always bound by the Rules of Professional Conduct despite what their supervising lawyer might say to the contrary. Rule 5.3 covers the supervising responsibilities for the nonlawyer assistants, i.e., secretaries, paralegals, other office staff and investigators. The Rules of Professional Conduct require all lawyers to always adhere to the Rules of Professional Conduct to ensure all lawyers working for them also do so. There can be vicarious disciplinary liability for misconduct by a subordinate lawyer if the supervising lawyer is aware of it or does not take steps to stop it.

Comments to the rules require a lawyer having managerial authority to make reasonable efforts to establish policies and procedures “designed to provide reasonable assurances that all lawyers in the firm will conform to the Rules of Professional Conduct,” see Comment 2 to Rule 5.1. That comment particularly notes a supervising lawyer must have procedures in place to detect and resolve conflict of interest, deadlines, account for clients' funds and assure that inexperienced lawyers in the firm are properly supervised.

Rule 5.1(c) sets forth personal responsibility of the supervising lawyer for another lawyer's work. That personal responsibility kicks in if the lawyer orders or acknowledges a specific conduct or ratifies bad conduct or knows of bad conduct when there is still time to remedy the consequences of bad conduct or rule violations.

Although the supervising lawyer can be held responsible, it does not in anyway lessen the responsibility of individual lawyers for complying with the Rules of Professional Conduct. There is no defense of well, I wasn't supervised properly if one is an attorney.

There is an old opinion of the Philadelphia Bar Association's guidance committee titled “EE-14″ where a supervising partner took a leave of absence. In that opinion, it was for about four months. The Philadelphia Bar Association's guidance committee noted that the lawyer still had responsibilities for supervising even though the lawyer was taking an absence from the firm. The committee allowed the lawyer to delegate the responsibilities of supervision, but the lawyer in return had to communicate regularly with the firm and the person he delegated the responsibilities to, to ensure things were running smoothly, to ensure the delegating attorney was properly supervising and that all the requirements under the Supervision Rule, Rule 5.1, were met.

Therefore, it appears that the answer to the question is the lawyer can take a sabbatical on vacation over a period of time away from the firm, but that does not relieve the lawyer of responsibilities for supervising. That supervision requires, obviously, that deadlines are met, escrow accounts are handled properly, lawyers are acting consistent with the Rules of Professional Conduct, etc. But the lawyer who is going away has the right to delegate that responsibility to competent people within the firm. Despite that delegation, a lawyer still has the duty to call in periodically and check in on what is going on with the lawyer who the delegation has been given to and with the associates in the firm.

In this modern legal world, there is never the opportunity for a true sabbatical. If a lawyer has a law firm and clients and if the lawyer wants to go away for an extended period of time, the lawyer is responsible to ensure that his clients' legal needs are properly met and the lawyers in the firm are properly supervised.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.