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Fortunately, in 2010, the Philadelphia Bar Association Professional Guidance Committee (Opinion 2010-6) addressed this question and came down on the side of lawyers. The opinion delves into the history of the rule against solicitation and the addition of the phrase, “real-time electronic communication.”
In 2005, Pennsylvania adopted the amendment to Rule 7.3 which banned solicitation using “real-time electronic communication.” When it was adopted, the phrase was contemplated to apply to chat rooms, where complete strangers could communicate with each other on an online forum website. The concern was interactivity and immediacy of response, the same concerns with in-person or telephone contact.
The interesting thing is that in 2004, a year before Pennsylvania adopted the ban on solicitation by “real-time electronic communication,” the Philadelphia Bar Association issued an ethics opinion suggesting that using chat rooms would not be barred by Rule 7.3. In essence, the Philadelphia Bar Association Professional Guidance Committee ethics opinion admittedly did not survive the 2005 amendment.
The Committee’s position per its 2010 opinion was that chat rooms pose the same risks as in-person/telephone communication. Computers users sitting in their homes chatting over a website are simply not at risk of succumbing to a lawyer’s undue influence and over-reaching; there is an electronic wall which protects the person sitting at their computer. They can leave the webpage, ignore the posts or otherwise get up and walk away from their computer, actions that are more difficult during a telephone or in-person contact due to the social awkwardness of hanging up on a person or walking away from a conversation.
The Committee’s other position was that the bar on “real-time electronic communication” is outdated, and therefore lawyers should not be bound by the technology of the time when the rule was contemplated, 2000. Rather, each type of online communication should be viewed on an ad hoc basis, to determine whether the communication is used in a way that makes it difficult for the recipient to decline the lawyer’s overtures. In general, the Committee found that typed communications in online chat rooms are not real-time electronic communications. It is important to note that this opinion is by no means binding on the Disciplinary Board.
