Class 3 Quiz: Question 7

I would like to appeal the answer to question 7 on behalf of a few members of the [firm] While a majority of the group selected the correct answer D (all of the above), a few of us selected the incorrect answer based on the same premise that a few of the choices were too vague and caused understandable confusion.

When I looked at the question, I first looked to determine if any of the answer choices were not grounds for disbarment by Georgia. Answer choice C stood out to me as being incorrect, because the language of Rule 7.3 led me to believe that an attorney's purpose is what matters when solicitation is regulated. Rule 7.3 section D states, "a lawyer shall not solicit professional employment as a private practitioner." If Tiffany Johnson is soliciting for pro bono work, I interpreted that as not being professional in nature. The fact that professional employment stems from that meeting could be irrelevant if her initial purpose and efforts were non-pecuniary in nature.

The Supreme Court case of Primus further establishes the viewpoint that the courts will not enforce state sanctions against attorneys soliciting for non-pecuniary gain. If Tiffany's motives were purely non-pecuniary, it seems as if this falls within this majority opinion and the wording of the GRPC. The fact that employment happened to stem out of this meeting doesn't speak to the heart of the concern for protecting the rights of the prospective clients. This answer choice does not give enough details as to how the employment stemmed from the contact. Asking a person if they would like free legal assistance would be act one. That this could have branched off into professional employment sometime down the road is irrelevant to the nature of the contact and the non-pecuniary motivations behind it.

Also answer choice A does not explicitly say that the attorney was soliciting in-person. It simply states that she is making direct personal contact with persons not seeking legal assistance. The phrase direct personal contact is vague in that attorneys have unrelated direct contact with non-clients all of the time. Direct contact could mean basic conversations, or it could mean active solicitation. To say that lawyers can be disbarred for merely speaking or having direct contact would be nonsensical and an unconstitutional infringement on speech.

Answer choice B was the choice I selected because it most clearly went to the heart of the rule against in-person solicitation. When a person is acting as a private practitioner, I took it as this implies some financial motivation. Private practice implies a business, and when one is acting on behalf of the business there is inherent pecuniary decision-making. The rule directly prohibits solicitation "as a private practitioner." That she is caught acting "as a private practitioner" would speak directly to the wording of the rule, and the spirit behind it. If being a private practitioner would somehow not mean acting in pursuit of financial gain, I would have answered differently. That being said, since the answer was all of the above, answer B would have included in the correct answer choices.

Because of this confusion, I ask that answer choice B also be considered as a correct response for the purposes of this quiz.