The industry norm is for lawyers to depend upon networking and marketing to get into and to stay in business. When lawyers choose to “chase” civil cases, in most instances it does not involve any potential harm to the parties. In domestic relations actions, that is not the case.
The focal point of this article is the time period following the filing of a publicly docketed divorce complaint when letters are sent to the defendant notifying him or her of the filing of the complaint for divorce with an offer of assistance with legal representation. This initial contact by an attorney can be how the defendant learns of the divorce action that has been filed against him or her. This contact is usually made without any knowledge of the parties and their domestic situation and it is this ignorance that has the potential to ignite a dangerous domestic situation. This form of solicitation remains a constant nuisance to those who fear for the lives of their clients when critical and confidential information is disclosed to the public. Presently, Philadelphia County does not allow public access to domestic relations cases; however, the four surrounding suburban counties (Bucks, Chester, Delaware and Montgomery) provide public access to all divorce cases filed of record.
Proponents of public access to the domestic relations dockets say, “It is public record and we are entitled to the information.” It remains to be seen if divorce actions in the public record place potential plaintiffs at risk and if the professional rules of conduct should protect any potential harm that could ensue as a result of this solicitation practice. Domestic relations actions are often extremely emotional and volatile. The Pennsylvania Coalition Against Domestic Violence reports that in 2010 there were 169 domestic violence fatalities in the commonwealth. Although this figure is down from 2009, there was an upward trend in domestic violence deaths from 2008. The National Center for Victims of Crime reports that in 2010, violent crimes (against both males and females) by intimate partners totaled 509,230 and accounted for more than 13 percent of all violent crimes. The chronic nature of domestic violence in our communities is not foreign to us; we are all well aware of its existence and the deadly effects it has and can have on its victims.
Presently, the ethical issue related to contacting potential domestic relations clients in writing before they have been properly served with their divorce complaint applies only to a small number of cases. However, there are occasions where a complaint is filed and the plaintiff intentionally withholds serving it to provide adequate time to protect himself or herself and the children. Sometimes circumstances change within a day in domestic matters and a decision to hold off or delay service could be crucial to avoiding an abusive and violent result. Due to the pursuit of new business as described above, unbeknownst to the moving party, a defendant may be notified by an unknown attorney that there is a divorce action against him or her. Domestic disputes can become gravely serious very quickly. If an attorney lacks specific knowledge of how volatile the parties’ situation is, harm may ultimately come to one or both of the parties as a result of the soliciting attorney’s efforts to obtain new business.
The family law section of the Montgomery County Bar Association has addressed these solicitation letters with its membership. The section made a specific resolution not to engage in this practice. Although this resolution has not stopped this practice entirely, within its own bar association or the surrounding suburban counties, it remains discouraged. Unfortunately, the bar association lacks the ability to offer consequences for attorneys who continue to engage in the solicitation of new divorce clients by watching the docket for new filings and contacting the responding parties.
The Rules of Professional Conduct allow for written communications to prospective clients under Rule 7.3 and the exceptions to Rule 7.3 do not apply to the solicitation practices referenced in this article. It is reasonable to believe that the soliciting attorney, having had no prior contact with the potential client, has no knowledge regarding the mental, physical or emotional state of the defendant. The preamble and scope of the Rules of Professional Conduct touch on many boundaries that the notification of the existence of a domestic action may involve. The preamble says, “A lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession’s ideals of public service.” Further, the preamble specifically provides, “Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibility to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living … Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the rules.” The preamble also says, “Lawyers play a vital role in the preservation of society.” Pursuant to the Rules of Professional Conduct, there exists an ethical obligation to ensure the safety of potential clients and the general public at the sacrifice of a possible retainer fee.
The Rules of Professional Conduct provide an avenue for the termination of the issuance of solicitation letters to potential domestic relations clients in the fashion described above. The statistics on domestic violence, coupled with a concern by the family law bar and related legal and mental health professionals, should prohibit the issuance of such solicitation letters as they are unreasonable and not in the best interests of the divorce litigants or society as a whole.
The initial contact of a party to an action that is as sensitive and personal as a divorce is truly a risky endeavor. Having been employed in the family law field for 23 years, I have seen cases where clients have committed murder and suicide before their initial consultation, during litigation and following the entry of a divorce decree. There is a level of sensitivity and responsibility to be employed in the practice of family law that may not be required in the practice of other areas of law. The purpose of this article is to raise the level of awareness about this type of solicitation in the bar and to provide exposure to the realities of domestic relations cases.
The existing Rules of Professional Conduct currently leave the public unnecessarily exposed to unsolicited contact in potentially unstable circumstances. The preamble says it best: “The rules do not, however, exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules.” Unfortunately, there are no specific rules outlining the solicitation letters described above. I believe the Rules of Professional Conduct, specifically the rules referenced above, should be applied to the ethical obligations an attorney has to his or her potential client when blindly forwarding solicitation letters to them. The Montgomery County Bar Association’s discouragement of these solicitation letters and the current domestic violence statistics are sufficient indicators for practicing attorneys to eliminate this type of solicitation letters, as they are not in the best interest of divorcing parties nor society as a whole. •
Peggy E. Rubin is a paralegal at Klehr Harrison Harvey Branzburg. She has been working in family law for 23 years. She received her paralegal certification from the American Institute of Paralegal Studies and is currently pursuing a bachelor’s degree in political science at Temple University. Rubin can be reached at firstname.lastname@example.org or 215-569-4095.