So this little blogpost from a Michigan bankruptcy attorney that went viral would be a perfect example to use to answer a question I get asked quite frequently: When do I have to worry about something I post online being treated as a solicitation of a client under the ethics rules? It would be a perfect example but for the fact that the Michigan lawyers post is really likely more satirical/didactic then truly solicitous.
Of course, it seems likely that if the business owner to whom the “open letter” was directed did end up hiring the Michigan attorney in a future bankruptcy matter that someone might claim it was because of that post – and it would be a hard thing to disprove. So… for an intellectual exercise let’s treat it as less satire and more an example of “kidding on the square.”
If that post had been written by a Tennessee lawyer directed toward a Tennessee business, you’d think the safe course would be to treat the particular post as a solicitation of a potential client needing to comply with RPC 7.3(c). Thus, it would need language at the beginning of the post and again at the end of the post saying “Advertising material.” It would already comply with RPC 7.3(c)(6)(i) because it already tells the recipient how they obtained the information about the potential client being in need of bankruptcy services though. To comply with RPC 7.3(c)(6)(iii), the very first sentence of the post though would be required to be “IF YOU HAVE ALREADY HIRED OR RETAINED A LAWYER IN THIS MATTER, PLEASE DISREGARD THIS MESSAGE.”
Yet, even if you did all of those things, you’d likely still have violated the rules because RPC 7.3(c)(6)(ii) mandates that the “subject matter of the proposed representation shall not be disclosed on the outside of the envelope (or self-mailing brochure) in which the communication is delivered.” Presumably, this means that the “open letter” concept directed to a particular business is completely off the table should a Tennessee lawyer actually seek to try it.
Which, frankly, is the correct answer and also a nice way of getting to the point that blogging is not supposed to be about, nor is it conducive to, directly targeting a potential client. And, also thankfully, as long as you avoid putting a “solicitation of employment” into your posts, RPC 7.3(d) in Tennessee provides that you do not have to spend any time trying to comply with RPC 7.3(d).
As for an analysis of the sort of antiquated nature of that language in RPC 7.3(c)(6)(ii) that contemplates that such things might be sent only by means involving envelopes or self-mailing brochures … let’s leave that for another time.