i. introduction: why it matters · web view2013/10/25 · and their legal counterparts began to...

Spring 2014Exam Number: 0745Professor SteeleLegal Profession

THE LAWYER AS SPORTS AGENT: ETHICAL DILEMMAS AND SOLICITATION

TABLE OF CONTENTS

I. Introduction: Why It Matters............................................................................................1II. Emergence of the Sports Agent and Athlete Representation..........................................2

A) More Than Just an Agent: The Expanded Role of Athlete Representatives...........4B) Regulation of Sports Agents on the Federal and State Level: SPARTA, UAAA, RICO, & Other Statutes...................................................................................................5C) The Lawyer as Agent: A Look to the Model Rules of Professional Conduct.........8

i. A Lawyer-Agent Is not Engaging in a Distinct Profession from the Law...............8III. Solicitation: Rule 7.3...................................................................................................10

A) Purpose and Roots of the Ban on Solicitation in the Legal Field..........................10B) Policy Overview: A Ban on In-Person Solicitation Protects Vulnerable Segments of the Population............................................................................................................11C) Permissible Solicitation: Friends, Relatives, Clients & Lawyers.............................12

i. Direct Mail Solicitation & Mass Advertisement Provides Little Return for Sports Agents........................................................................................................................13

IV. A Fair Solution............................................................................................................15A) Athletes Expect Agent Solicitation.......................................................................15B) Sports Clients Are Not Members of a Vulnerable Class.......................................17C) Governing Bodies Are Unconcerned With Athlete Solicitation............................18D) A Wasteful Alternative: Holding Out and Not Practicing Law............................19

V. Conclusion....................................................................................................................20

Professor Steele, Spring 2014, Exam Number: 0745, Legal Profession

THE LAWYER AS SPORTS AGENT: ETHICAL DILEMMAS AND SOLICITATION

I. INTRODUCTION: WHY IT MATTERSSpurred by the exponential growth of athlete salaries in the mid to late nineteen-

eighties, the responsibilities of sports agents1 and their legal counterparts began to expand

and collide.2 Individuals looking to financially capitalize on this gain, or those simply

attracted to the “glamour” associated with the sports industry, jumped into the fray and

quickly tried to make their mark.3 While this expansion resulted in intense competition to

enter the business, abuse and a myriad of unethical behaviors were rampant among

practicing professionals.4 Agents became known for their overly aggressive tactics to

recruit clients, unreasonable fees, and financial mismanagement.5 Many were even

prosecuted under various criminal laws, ranging from tampering and extortion to

racketeering.6 This widespread abuse led many client-athletes to turn to the legal

profession for services formerly provided by agents.7

Established lawyers were (and still are) constantly seeking to expand their client

base, while those aspiring to enter the industry aim to find “the next big athlete.” These

1 Legally, an agent is defined as “[o]ne who acts for or in place of another by authority from him,” or “[o]ne who deals . . . with persons, using his own discretion as to means, and frequently establishing contractual relations between his principal and third persons,” or “[a] business representative, whose function is to bring about, modify, [or] affect . . . contractual obligations between principal and third persons.” BLACK’S LAW DICTIONARY 59 (5th ed. 1979).2 Robert E. Fraley & F. Russell Harwell, Ethics and the Sports Lawyer: A Comprehensive Approach, 13 J. LEGAL PROF. 9, 11-12 (1988); Scott R. Rosner, Conflicts of Interest and the Shifting Paradigm of Athlete Representation, 11 UCLA ENT. L. REV. 193, 195-97 (2004). 3 Fraley & Harwell, supra note 2, at 11-12. 4 Id. 5 Id. at 12.6 Id. at 13. 7 Id. at 14.

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efforts require agents that are lawyers to pay special attention to the ethical mandates of

the legal profession that many non-lawyer agents are not subject to follow. This Note

discusses the emergence of the sports agent as a profession, the shift towards the legal

industry, and examines the legal conundrum lawyer-agents are placed in when trying to

attract new clients while simultaneously abiding by the ABA Model Rules of

Professional Conduct (“MRPC”), specifically those guidelines dealing with solicitation in

Rule 7.3. In conclusion, I argue that it may be fairest to treat all agents alike, as an equal

playing field will ensure parity among an entire class of professionals and benefit not

only lawyer-agents, but athletes as well.

II. EMERGENCE OF THE SPORTS AGENT AND ATHLETE REPRESENTATION Several decades ago sports agents were virtually non-existent, as athletes

negotiated their playing contracts directly with sports franchises.8 Though several teams

did allow athletes to have representation, relatives or friends stepped in for the majority

of cases.9 In the 1970s, Major League Baseball and the Major League Baseball Players

Association collectively bargained for an athlete’s right to be represented by an agent

during their negotiation with a club,10 and athletes were soon able to reinforce their

bargaining position and maximize their salaries through their agents.11 This negotiation

style acted as a catalyst and soon spread to the majority of professional sports. Since then,

8 Melissa Neiman, Fair Game: Ethical Considerations in Negotiation by Sports Agents, 9 TEX. REV. ENT. & SPORTS L. 123, 125 (2007). The most renowned of these early representation stories notes that former Green Bay Packers coach Vince Lombardi traded offensive lineman Jim Ringo to another team because he had the nerve to arrive to a contact negotiation with an agent. Rosner, supra note 2, at 196 (citing DAVID MARANISS, WHEN PRIDE STILL MATTERED 354 (1990)). 9 Rosner, supra note 2, at 196.10 Id.11 Id. at 197. This salary increase stemmed from the growing revenues accrued by television, ticket sales, and sponsorships. Id.

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various sports unions and the National Collegiate Athletic Association (“NCAA”) have

attempted to control the agent-athlete relationship.12

In 1989, already fifty percent of those actively involved as representatives in the

three major professional sports (baseball, basketball, and football) were lawyers,13 and the

growth of the business over the years has produced an “oversupply of agents for a finite

number of clients.”14 As of 2013, there are 4,300 professional athletes in the four major

leagues (the aforementioned three in addition to hockey) and between 1,600 to 1,800

agents certified by their respective players associations competing for talent

representation.15 While the field is accompanied by high return and stature,16 the demand

and desire for attorneys has not cured the problems and ethical dilemmas plaguing sports

representation, as new issues have come to light as a result of a different class of

representatives entering the market.

A) MORE THAN JUST AN AGENT: THE EXPANDED ROLE OF ATHLETE REPRESENTATIVESDespite greater wealth for athletes, agents, and franchises, higher levels of

compensation have come with a price. Agents were soon expected to not only negotiate

contracts on behalf of their clients, but were also put in charge of financial management

12 Walter T. Champion, Jr., Attorneys Qua Sports Agents: An Ethical Conundrum, 7 MARQ. SPORTS L.J., 349, 349 (1997). 13 Fraley & Harwell, supra note 2, at 14. 14 James Masteralexis, Lisa Masteralexis & Kevin Snyder, Enough Is Enough: The Case for Federal Regulation of Sport Agents, 20 JEFFREY S. MOORAD SPORTS L.J., 69, 70 (2013).15 Id. The competition for clients is stiff. In 2012 the National Football League Players Association released numbers indicating that 42 percent of registered agents have no clients currently in the NFL; 25 percent of agents have between one and four clients; and 13 percent of the agents represent half of the players in the NFL. Andrew Brandt, An Agent’s Life Isn’t All Glamour, ESPN (Nov. 27, 2012), http://espn.go.com/nfl/story/_/id/8681968/nfl-agent-life-all-glamour.16 Masteralexis, Masteralexis & Snyder, supra note 14, at 70.

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and accounting, athletic training, investment, tax and estate planning and legal

counseling.17 Today, attorneys, money managers, coaches and former athletes have all

entered the profession18 and practice solo, in small groups, or in large “full service”

firms.19 The standard agent-athlete contract establishes responsibilities and rights between

the two parties, and usually calls for a good faith effort by the agent on behalf of the

athlete.20 Agents are subject to common law agency requirements and because there is a

fiduciary duty between agent and client, the agent owes loyalty, obedience, and

reasonable care to the athlete.21 In addition, agents must avoid actual or apparent conflicts

of interest22 and have a duty to disclose any information that might impede or

compromise representation.23

An agent’s main function still remains to negotiate the athlete’s employment

contract with a sports team and to maximize salary intake for as long a period of time as

possible.24 Agents must be aware of league-specific collective bargaining agreements,25

salary caps, market values, and the philosophies and spending patterns of the team in

question in order to most effectively negotiate a complete contract.26 In addition, agents

17 Champion, supra note 12, at 349. 18 Charles B. Lipscomb & Peter Titlebaum, Selecting a Sports Agent: The Inside for Athletes & Parents, 3 VAND. J. ENT. L. & PRAC. 95, 96 (2001). 19 Id. at 96. 20 Champion, supra note 12, at 351. 21 Rosner, supra note 2, at 229. 22 George Cohen, Ethics and the Representation of Professional Athletes, 4 MARQ. SPORTS L.J. 149, 155 (1993). 23 Id. 24 Lipscomb & Titlebaum, supra note 18, at 100. 25 A collective bargaining agreement (“CBA”) is an agreement, which is reached through the negotiation of an employer or an employer’s organization and a representative workers’ organization. SRIYAN DE SILVA, INT’L LABOUR ORG., COLLECTIVE BARGAINING NEGOTIATIONS (1996), available at http://www.ilo.org/public/english/dialogue/actemp/downloads/publications/srscbarg.pdf. 26 Lipscomb & Titlebaum, supra note 18, at 100.

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help athletes obtain endorsement deals, speaking engagements, and a multitude of other

functions mentioned above.27

B) REGULATION OF SPORTS AGENTS ON THE FEDERAL AND STATE LEVEL: SPARTA, UAAA, RICO, & OTHER STATUTESSports agents that recruit athletes out of college are regulated through the Sports

Agent Responsibility and Trust Act of 2004 (“SPARTA”) and the Uniform Athlete

Agents Act (“UAAA”).28 These acts have helped protect student-athletes and educational

institutions from over-zealous and aggressive agents; however, there still continues to be

a need for increased oversight as statutory regulation and enforcement is not a priority.29

While SPARTA is the sole federal statute that regulates agents, many states have adopted

the UAAA, a model law enacted in 2000 intended to create a uniform system of rules to

regulate agent conduct when recruiting student-athletes out of college.30 In the event of a

violation, the NCAA does not have the jurisdiction to discipline an agent, only student-

athletes and coaches,31 and it is important to note that the second an athlete loses his or

her NCAA eligibility these statutes no longer apply.32

SPARTA demands agents abide by three duties: 1) a duty to be truthful, 2) a duty

of disclosure, and 3) a duty to refrain from “buying” an athlete.33 An agent cannot lie or

give false or misleading information; he must provide athletes and their parents (if the

athlete is under 18) with a disclosure document containing a warning about the

27 Id.28 Darren A. Heitner, Duties of Sports Agents to Athletes and Statutory Regulation Thereof, 7 DARTMOUTH L.J. 246, 246-47 (2009). 29 Id. at 247.30 Id. 31 Panel III: Ethics and Sports: Agent Regulation, 14 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 747, 759 (2004) [hereinafter Panel III]. 32 Heitner, supra note 28, at 247.33 See 15 U.S.C. § 7802 (2012).

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consequences of losing NCAA eligibility once he or she is signed with an agent; and, the

agent is forbidden from giving the athlete (or anyone associated with him) anything of

value.34 On the other hand, the UAAA requires agents to register with any state that has

adopted the act, and in order to initiate contact with a student-athlete, the agent must be

registered in his or her own home state and the state in which the athlete resides.35 In

addition, the UAAA creates a duty of disclosure much like SPARTA,36 and prohibits the

“buying” of student athletes.37

In addition, non-sports related statutes like the Racketeer Influenced and Corrupt

Organizations Act (RICO) exist in conjunction with the above laws and professional

players’ associations’ requirements in order to regulate agents.38 Players unions require

sports agents to register as members and abide by their rules,39 and each sport includes

regulations that command an agent to be ethical and competent in his representation of

athletes.40 However, despite the enactment of these “ethical” rules, similar in many ways

to the MRPC binding lawyers, there is no actual ban on initial client solicitation. In fact,

for the student-athlete, many schools have a formal meeting process known as “Agent

Day” where agents meet college athletes and talk about their services in a room set up

and regulated by the school.41 As for professional athletes already in the market, agents

are free to approach potential clients at will, and while soliciting athletes with existing

34 Heitner, supra note 28, at 251. 35 Id. at 251-52.36 Id. at 252. 37 Id. at 252-53. 38 Id. at 255. 39 See, e.g., What We Do, NBA PLAYERS UNITED, http://www.nbpa.com/what-we-do (last visited Apr. 29, 2014). 40 Heitner, supra note 28, at 256. At a minimum, each association does a full background check which includes researching past criminal convictions, bankruptcy filings, and fraud or embezzlement charges. Id. 41 Panel III, supra note 32, at 747, 770.

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http://www.nbpa.com/what-we-do


representation contracts may run afoul of contract law (and is regulated by professional

league rules), the practice is still commonplace.42 Therefore, while the rules in place act

as a strong deterrent, keeping agents from freely taking advantage of their clients,

solicitation is not an enumerated evil, and non-lawyer agents are free to do as they please

when attempting to attract new clients.43

C) THE LAWYER AS AGENT: A LOOK TO THE MODEL RULES OF PROFESSIONAL CONDUCTLawyer-agents are distinct from other sports agents because they identify as

officers of the legal system and are members of a self-regulating profession.44 The Model

Rules echo the lofty goals of the profession by stating that “lawyers play a vital role in

the preservation of society.”45 Lawyers are subject to the court’s supervision and to

“duties geared to protect the vigor, fairness, and integrity process of litigation.”46

Furthermore, lawyers have duties that are not neatly cabined into agency and owe current

and potential clients confidentiality and fiduciary duties that many non-lawyer agents

ignore and are not required to follow.47 As legal professionals, lawyers perform a public

42 Lionel S. Sobel, The Regulation of Sports Agents: An Analytical Primer, 39 BAYLOR L. REV. 701, 715-16 (1987). Frequently, one agent will accuse another for soliciting his client. This occurs while the player’s existing representation contract has time to run, and the solicitation induces assertions that the existing contract is unfair to the athlete and should be renegotiated immediately. An agent only stands to gain a new client if his argument persuades the athlete that his existing contract is inadequate. Id. A recent claim has arisen between two agents in which one is accusing the other of stealing his current client “through the use of private planes, celebrity encounters and hedonistic parties.” The initial solicitation, however, is not at issue. Complaint at 1, Miller v. Walters, No. 0653735, 2013 WL 5785954 (Sup. Ct. N.Y. County Oct. 25, 2013). 43 Heitner, supra note 28, at 247. 44 Deborah A. DeMott, The Lawyer as Agent, 67 FORDHAM L. REV. 301, 311 (1998); see also MODEL RULES OF PROF’L CONDUCT Preamble & Scope (2013). 45 MODEL RULES OF PROF’L CONDUCT Preamble & Scope (2013). 46 De Mott, supra note 44, at 301.47 Id. at 311.

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service, which sits at odds with the commercialization of ordinary business.48

Furthermore, all lawyers, including attorney-agents must follow the Rules of Professional

Conduct that individual state bars publish. Though the MRPC has requirements of

disclosure and truthfulness that are similar to the requirements of SPARTA49 and

professional sports leagues, anti-solicitation rules govern many potential contacts a

lawyer-agent can have with athletes.

I. A LAWYER-AGENT IS NOT ENGAGING IN A DISTINCT PROFESSION FROM THE LAW Because lawyer-agents are not engaging in a profession that is entirely distinct

from and unrelated to the practice of law, like a teacher or musician, the probability of

ethical violations becomes higher when the second occupation though “theoretically and

professionally distinct, is one closely related to the practice of law, and one which

normally involves the solution of what are essentially legal problems.”50

One case directly dealing with the application of the MRPC and a lawyer partially

engaged in another profession arose in Arizona, where an attorney acted as a financial

advisor in a transaction for a client and was subsequently brought before the Arizona Bar

after a complaint was filed by the client alleging the lawyer acted improperly.51 The

attorney defended his action in part on the basis that he was not practicing law but acting

in his capacity as a financial advisor; however, the Supreme Court of Arizona noted that:

48 Robert E. Fraley & F. Russell Harwell, Sports Law and the Evils of Solicitation, LOY. L.A. ENT. L. REV. 21, 24 (1989). In particular, it has been noted that solicitation is improper for lawyers to engage in because it commercializes the bar, and “the practice of law is a profession and not a trade.” See ABA Comm. on Prof’l Ethics & Grievances, Formal Op. 148 (1935). 49 Heitner, supra note 28, at 257. 50 State Bar of Cal. Standing Comm. on Prof’l Responsibility & Conduct, Formal Op. 1968-13 (1968), available at http://ethics.calbar.ca.gov/Portals/9/documents/Opinions/1968-13.htm.51 In re Dwight, 573 P.2d 481 (Ariz. 1977).

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“as long as a lawyer is engaged in the practice of law, he is bound by the ethical

requirements of that profession, and he may not defend his actions by contending that he

was engaged in some other kind of professional activity. For only in this way can full

protection be afforded to the public.”52 This holding makes sense in terms of policy so

long as the selection of an agent turns on his membership to the legal profession.

Continuing the obligation of the profession beyond the scope of the practice protects the

client’s interests;53 however, today, athletes are arguably drawn to the track record of an

agent, and not their professional affiliation.54 Furthermore, client contact is so integral to

the sports industry that allowing a rule in the MRPC to sit in direct conflict with

customary practice seems unfair. When lawyer-agents have to compete with other agents

that are not restricted by these rules, the level of competition is fundamentally flawed. In

addition, if every ethical code of each regulated profession were to accompany its

professionals into the realm of sports agency, a myriad of different ethical codes would

conflict and co-exist around one another in an incredibly ineffective manner.55 Although

this analysis can fall victim to the “slippery slope argument”, whereby an opponent may

think there is nothing stopping to whole MRPC from not applying to lawyer-agents, this

Note only calls for a narrow exception, giving attorney-agents the right to solicit clients

because homogenous practices within an industry are beneficial to all parties, and

lawyers, as opposed to other regulated professionals, make up the majority of sports

agents.

52 Id. at 484. 53 Paul T. Dee, Ethical Aspects of Representing Professional Athletes, 3 MARQ. SPORTS L.J. 111, 112-13 (1992). 54 Champion, supra note 12, at 356. Clients are extremely concerned with whom else the agent represents. Id.55 Id.

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III. SOLICITATION: RULE 7.3 “A lawyer shall not in-person, live telephone or real-time electronic contact

solicit professional employment when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain.”56

A) PURPOSE AND ROOTS OF THE BAN ON SOLICITATION IN THE LEGAL FIELDSolicitation is an unrequested communication a lawyer makes to a non-lawyer

for the purpose of obtaining professional legal employment.57 In the legal field, anti-

solicitation rules protect the public from potentially coercive and borderline abusive

“sales pitches,” a problem rampant in the sports industry.58 This concern was at the heart

of the landmark case Ohralik v. Ohio State Bar Ass’n,59 which was prompted by “in-

person solicitation, [the] dangers of deception, overreaching, undue influence,

intimidation, and other forms of vexatious conduct” that were at the time, infiltrating the

legal profession.60

Solicitation is also looked down upon for a number of reasons. First, it is said to

lower the status of the legal profession,61 and in an effort to preserve the profession’s

standards and dignity, in-person solicitation has been eliminated as an ethical

communication. Since lawyers are officers of the court, undignified behavior negatively

56 MODEL RULES OF PROF’L CONDUCT R. 7.3 (2013). 57 MODEL RULES OF PROF’L CONDUCT R. 7.3 cmt. (2013); Fraley & Harwell, supra note 48, at 24. 58 Fraley & Harwell, supra note 48, at 24. This type of sports agent abuse is known as “overly aggressive client recruitment practices.” Sobel, supra note 42, at 714-16. 59 436 U.S. 447 (1978). The Court specifically stated that the state had multiple interests in banning solicitation which included: maintaining the standards of the profession, discouraging fraudulent claims, lawyer overreaching, overcharging and underrepresentation, and protecting the privacy of individuals. Id. at 460-62. 60 Fraley & Harwell, supra note 48, at 24. 61 Id. These “self-imposed” rules can be traced to the early English bar, when lawyers, as members of the upper class, practiced as public servants instead of as businessmen. Solicitation was considered “undignified” since compensation was not a motivating force for serving as an attorney. HENRY S. DRINKER, LEGAL ETHICS 210 (1953).

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reflects on the entire profession and justice system.62 In addition, disallowing direct

solicitation of clients in the legal industry is said to promote unity among members and to

prevent client stealing,63 another issue extremely prevalent in the sports industry.64

B) POLICY OVERVIEW: A BAN ON IN-PERSON SOLICITATION PROTECTS VULNERABLE SEGMENTS OF THE POPULATION

The policy behind solicitation rules is aimed at protecting those segments of the

population that are more vulnerable to over-ardent lawyers.65 In-person contact keeps an

individual from fully evaluating all available alternatives with “reasoned judgment[,]”

and a lawyer’s presence can leave a situation “fraught with the possibility of undue

influence, intimidation, and over-reaching.”66 For example, accident victims, hospitalized

after a traumatizing event, should not be subject to an in-person solicitation in their

hospital room amidst an already emotional event.67 This “ambulance chasing” is

absolutely not tolerated in the legal profession, however; professionals in the sports

industry do not see athletes as members of a “vulnerable” class. Once an agent drops an

athlete, the calls and visits start almost immediately. Although changing one’s legal

representation in the sports industry should not be analogized to an accident or traumatic

event (although the athlete may feel a similar amount of emotional anguish), the

difference of how lawyers and non-lawyer agents treat solicitation is obvious.

62 Fraley & Harwell, supra note 48, at 25. 63 Id. 64 KENNETH L. SHROPSHIRE & TIMOTHY DAVIS, THE BUSINESS OF SPORTS AGENTS 55-56 (2008).65 MODEL RULES OF PROF’L CONDUCT R. 7.3 cmt. (2013); Fraley & Harwell, supra note 48, at 26.66 MODEL RULES OF PROF’L CONDUCT R. 7.3 cmt. (2013)67 Fraley & Harwell, supra note 48, at 26.

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C) PERMISSIBLE SOLICITATION: FRIENDS, RELATIVES, CLIENTS & LAWYERSThis over-reaching issue is not present in all cases and the rules of professional

conduct allow a lawyer to recommend his or her services to an individual that is “family,

[or has a] close personal, or prior professional relationship with the lawyer.”68 This

allowed category is presumably less likely to succumb to unethical pressures because

there is an established pre-existing relationship, and the individual is better able to

evaluate the propriety of employing the attorney.69 The model rules also note that there is

far less likelihood of a lawyer engaging in “abusive practices against a former client, or a

person with whom the lawyer has a close personal or family relationship, or in situations

in which the lawyer is motivated by considerations other than the lawyer’s pecuniary

gain.”70 In addition, other attorneys of the bar do not risk the same dangers of

misrepresentation or invasion of privacy inherently threatening to members of the general

public because they practice in the same profession.71

I. DIRECT MAIL SOLICITATION & MASS ADVERTISEMENT PROVIDES LITTLE RETURN FOR SPORTS AGENTS

Although in-person solicitation is the primary point of controversy among

sports agents because it is the most effective way to convince a client to sign with an

agency,72 direct mail solicitation and advertising are also relevant because many draft

68 MODEL RULES OF PROF’L CONDUCT R. 7.3 (2013).69 Fraley & Harwell, supra note 48, at 26. 70 MODEL RULES OF PROF’L CONDUCT R. 7.3 cmt. (2013). 71 Fraley & Harwell, supra note 48, at 26. 72 In fact, the most asked question athletes ask agents is, “Who[m] else do you represent?” SHROPSHIRE & DAVIS, supra note 64, at 55. This fact-finding on the part of the athlete is near impossible if only solicited through the mail. Agents know this and therefore revert to in-person contact. In addition, colleges with big Division I programs provide questions for athletes to present to agents in order to “drill them.” These questions include: “Are you a member of the bar, have you ever been decertified, have you ever had a violation, etc.” Panel III, supra note 32, at 770-71.

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picks are contacted through these means.73 In Shapero v. Kentucky Bar Ass’n74 the

Supreme Court relaxed the types of client contact lawyers were allowed to make and held

that states may no longer categorically prohibit lawyers from sending letters to potential

clients for pecuniary gain so long as the letters are truthful and non-deceptive.75 The

Court went on to note that individuals receiving letters in the mail are not faced with the

“coercive presence of a trained advocate or the pressure for an immediate yes-or-no

answer . . . but can simply put the letter aside to be considered later, ignored, or

discarded.”76

Therefore, following the rationale of Shapero, lawyer-agents, like all

practitioners, may utilize written solicitation aimed at specific clients as an authorized

means for increasing business, and can urge athletes to contact their office about a

meeting so long as the lawyer’s communications are truthful, non-deceptive, and are

labeled as advertisement.77 However, as a practical matter, Shapero has had little impact

on the sports representation industry, as athletes known to need legal services are

constantly bombarded with mail during and after their college careers.78 Although

73 Fraley & Harwell, supra note 48, at 27. 74 486 U.S. 466 (1988). 75 Id. 76 Id. at 467. The Court did recognize the potential for abuse and stated, “although a personalized letter does present increased risks of isolated abuses or mistakes, these can be regulated and minimized by requiring the lawyer to file the letter with a state agency having authority to supervise mailings and penalize actual abuses.” Id. 77 Fraley & Harwell, supra note 48, at 30. Rule 7.3 states “Every written, recorded or electronic communication from a lawyer soliciting professional employment from anyone known to be in need of legal services in a particular matter shall include the words ‘Advertising Material’ on the outside of the envelope.” MODEL RULES OF PROF’L CONDUCT R. 7.3 (2013). 78 Fraley & Harwell, supra note 48, at 30. Even as far back as the 1980s college quarterbacks were contacted through the mail. Robert H. Ruxin, Unsportsmanlike Conduct: The Student-Athlete, the NCAA, and Agents, 8 J.C. & U.L. 347, 356 (1982) (noting that over 100 sports agents contacted Nail Lomax in anticipation of the 1981 NFL draft).

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prospective clients receive a large volume of mail, the letters alone have little influence

on the selection process of a representative.79 Client-athletes have come to expect in-

person meetings with agents and lawyers, and if the meeting is initiated by the lawyer it

is clearly outside the scope of the contact permitted and approved of in Shapero.80

Therefore, the conundrum exists in treating non-attorney agents one way and attorney-

agents another.

In addition, although the MRPC permit a lawyer to advertise to the general

public, in the form of a billboard, Internet banner advertisement, website, or television

commercial, 81 this allowance affords lawyer-agents little benefit. Sports representation is

not suitable to mass marketing, as those qualified to play in a professional league are

limited in number, and the use of general advertising does little to develop an agent’s

client base.

IV. A FAIR SOLUTION While trying to maintain professional standards is a noble goal, a ban on in-person

solicitation, especially in the athlete context does not offer clear protection. The

connections between solicitation and the erosion of professionalism are “tenuous”, and it

is predicated on the assumption that “lawyers would conceal from themselves and their

clients the real-life fact that they earn their livelihood at the bar.”82 Instead, lawyers are

prevented from taking part in the open recruiting practices of agents and are placed in a

79 Fraley & Harwell, supra note 48, at 30. 80 Id. 81 MODEL RULES OF PROF’L CONDUCT R. 7.4 cmt. (2013). 82 Fraley & Harwell, supra note 48, at 25. In addition see Bates v. State Bar of Ariz., 433 U.S. 350, 368 (1977) (“[T]he postulated connection between advertising and the erosion of true professionalism [is] severely strained.”).

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“Catch-22” where they are at a clear competitive disadvantage.83 Assuming that a lawyer

feels morally compelled to follow the professional ethical restraints placed on him by the

legal profession,84 the lawyer-agent is left with an unfair disadvantage even though a

lawyer may better represent a particular client.85 Therefore, a change in the prohibition on

solicitation that currently binds attorneys in relation to potential clients in the sports

industry may be beneficial to all parties.

A) ATHLETES EXPECT AGENT SOLICITATION The nature of the sports industry is such that athletes expect agent contact and

solicitation. Because a referral system for sports clients is unrealistic, agents must reach

out to potential athletes in order to convince them to sign, and clients have become

accustomed to in-person solicitation.86 Although the legal system aims to gain business

through referral, the system is not adequately suited for the urban settings of many agents

because there is a nationwide scope of potential clients for agents to pick and choose

from.87 Clients are not local, and even though an athlete may start in an agent’s

hometown, many athletes pick a college based on the prestige of their athletic program.

Therefore, agents have a broad geographical client base, which makes referrals harder to

come by and less likely.

83 Fraley & Harwell, supra note 2, at 35. 84 Some lawyers may decide to not follow ethical codes, and the Preamble of the MRPC acknowledges that compliance with the rules “depends primarily upon understanding and voluntary compliance.” MODEL RULES OF PROF’L CONDUCT Preamble & Scope, ¶ 16 (2013). 85 Fraley & Harwell, supra note 2, at 35. Athletes can be at an advantage when hiring lawyers over agents due to several factors, including the fact that lawyers have a formal legal education and actual practice involving the negotiation and drafting of contracts, as well as the fact that lawyers are bound by an ethics code that holds dishonest and incompetent representation as unacceptable. Gary P. Kohn, Sports Agents Representing Professional Athletes, 6 ENT. & SPORTS L. 1, 15 (1988). 86 Fraley & Harwell, supra note 2, 36.87 Id.

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In addition, competition in the industry runs so strong, and in-person recruiting so

prevalent, that athletes have become accustomed to being approached about possible

representation.88 Not only are agents constantly visiting universities across the country on

their own through the likes of Agent Day, but many also have “runners,” individuals

charged with securing a relationship with clients and their relatives.89 Runners are

typically young so that they can fit in on a college campus90 while they attempt to

establish some kind of rapport with a potential client based on trust or whatever the agent

may have that an athlete wants (an advance of money, favors, etc.).91 Lawyer-agents are

not privy to this benefit either because using a runner-like system would run into conflict

with MRPC 8.4(a), which prohibits lawyers from knowingly assisting or inducing

another to violate the Professional Rules, or to do so through the acts of others.92 In light

of these interactions, it makes little sense to deny lawyers the right to have one-on-one

access to clients. A lawyer’s business development is frustrated, and a client is denied

valuable information concerning legal representation, including more competent

representation and lower client fees.93

B) SPORTS CLIENTS ARE NOT MEMBERS OF A VULNERABLE CLASS The traditional purposes for disallowing lawyer solicitation are valid and serve

important state and societal interests. However, those interests are not served by

prohibiting a specific subset of agents from soliciting clients. Although college athletes

88 Id. 89 Panel III, supra note 32, at 763. 90 Id. at 768.91 Id. at 763. 92 MODEL RULES OF PROF’L CONDUCT R 8.4(a) (2013). 93 Fraley & Harwell, supra note 2, at 37. Lawyers often note that they will charge more reasonable fees, through an hourly rate, instead of a percentage of the total dollar value of the contract negotiated. Id.

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are young and impressionable, and the stories of agents offering athletes illegal incentives

while still in college are among the top headlines,94 college athletes have come to

experience “more high-powered, face-to-face contact than typical members of the general

public.”95 Many athletes are subject to media scrutiny during their college careers96 and

the student-athlete is many times mandated to give press-conferences, interviews, and

appearances throughout his or her career. Although there is no doubt that unethical

behavior on the part of the agent does occur, their acts should be regulated by a separate

set of by-laws,97 not the MRPC solicitation rule. In addition, many college athletes have

their parents help select agents, and if the athlete was heavily recruited out of high

school, the in-person sales pitch has become a routine.98 Therefore, the undue pressures

that the MRPC foresee do exist, but they are commonplace and accepted among athletes

and agents within the sports industry.

Furthermore, the process of selecting a lawyer or agent, and the signing of the

representation agreement can be analogized to the signing of a National Letter of Intent.99

All-star high school athletes are wooed by college coaches from across the country as

early as their sophomore year, and ultimately must settle on a single destination, much

like a college athlete is presented with a large amount of agent-options and is forced to

settle on one. Although athletes may not have an exact picture of their legal needs, nor

94 See, e.g., Reggie Bush to Forfeit Heisman, ESPN (Sept. 15, 2010), http://sports.espn.go.com/los-angeles/ncf/news/story?id=5572827 (noting that Bush gave back his trophy because he received improper benefits). 95 Fraley & Harwell, supra note 2, 37.96 A Google News search on Florida State University star quarterback Jameis Winston returns over 6,000 hits in .24 seconds (search conducted on Apr. 29, 2014). 97 Given the disparity between lawyer-agents and the majority of athletes, some limitation on in-person solicitation should be desired. GEORGE W. SHUBERT, RODNEY K. SMITH & JESSE C. TRENTADUE, SPORTS LAW 147 (1986). 98 Fraley & Harwell, supra note 2, 37 99 Id.

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possess the requisite expertise to adequately assess presented information, banning

lawyer-agents from in-person contact only exacerbates the problem. The MRPC address

deception100 in provisions outside of the scope of solicitation and lawyer-agents are in a

prime position to disclose and explain the inner workings of a contract negotiation not

only between themselves and the athlete, but the athlete and their potential employer.

Lawyer-agents can help an athlete make a fully informed decision that best suits their

needs.

C) GOVERNING BODIES ARE UNCONCERNED WITH ATHLETE SOLICITATION League players associations, the federal government, and state legislatures attempt to

regulate agent conduct in various ways. However, these bodies have shown little to

almost no concern over solicitation between representatives and athletes.101 Solicitation in

the eyes of the industry is not an evil worth attempting to regulate, and the rules in place

are aimed at eradicating player bribes, misleading business titles, and misinformation.102

In addition, the NCAA only forbids an athlete from signing a representation agreement

with an agent during an athlete’s eligibility, and the NCAA Constitution anticipates face-

to-face contact between student-athletes and agents.103 Regulation agencies are not

concerned with agents approaching prospective clients, and lawyer-agents should not be

penalized through the MRPC. Agent-client contact is an integral part of the sports

industry, and it makes little sense to treat similarly situated agents differently.

D) A WASTEFUL ALTERNATIVE: HOLDING OUT AND NOT PRACTICING LAW A last option for lawyers attempting to avoid the solicitation rules of the MRPC is

to hold out and engage in athlete representation solely as a sports agent. A lawyer in this 100 MODEL RULES OF PROF’L CONDUCT R. 7.1 (2013). 101 Fraley & Harwell, supra note 2, at 39 102 Id. 103 Id. at 40.

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situation would hold himself to general agency standards, which do not include the legal

profession’s mandates regarding in-person solicitation.104 However, lawyers choosing this

path must disavow their membership to a state bar, as an attorney cannot avoid violation

of solicitation by “segregating” the two positions.105 A lawyer-agent will most likely

openly discuss the general advantages of hiring someone with the experience and skills of

a lawyer, therefore, by retaining that status, the lawyer-agent is at a minimum, “engaged

in a law related occupation when acting as an agent.”106 In effect, disavowing “lawyer”

ties must be a clear determination because any agent that still claims to be a lawyer is

subject to statutes regulating the unauthorized practice of law.107 Another impermissible

way of avoiding solicitation regulation would be for a group of lawyer-agents to form a

corporation made up of non-lawyers to solicit potential clients.108 This scenario will most

likely be met by disapproval from the courts because a variety of conflicts of interest may

with the organization running afoul of other ethical mandates. Therefore, it seems most

practical to draw a bright-line rule for lawyer-agents working in the industry and to allow

these individuals to solicit clients like every other agent.

104 Id. at 41. 105 Id. 106 Id. Some individuals choose to not become a licensed member of a state bar but still claim to be a “lawyer” in their role as a sports agent. These agents claim that their reason for not obtaining a law license is that attorney solicitation is unethical, yet in order to obtain sports clients, they must solicit. Ala. State Bar Disciplinary Comm., Op. No. 85-73 (1985) (noting that an individual who is not a state bar member and lists himself as an attorney is in violation of a statute prohibiting the unauthorized practice of law). 107 Fraley & Harwell, supra note 2, at 42. 108 Id.

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V. CONCLUSION In today’s world a lawyer-agent is removed from the “confines of rendering legal

advice”109 and is perhaps more qualified than a non-lawyer agent to conduct business in

the sports industry; however, the legal profession’s ethical code is hampering the flow of

information and the growth of business. In an industry so driven by personal contact, and

consisting of an extremely large number of attorneys, it is unfair to keep attorneys from

engaging in client solicitation. Although the sports industry contains problems the

solicitation rule is directly aimed at eradicating, namely client stealing and over-zealous

sales pitches, there are rules in place for each professional league that ban approaching

represented clients, and the initial sales pitch is part of being a professional athlete.

Therefore, the original goals of the ban on solicitation in the legal profession are not at

issue in the sports world. An equal playing field keeps lawyer-agents from turning to

unethical alternatives to bring in new clients and benefits all parties.

109 Id. at 17.

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