Rule 7.3.Direct Contact with Prospective Clients
(a)A lawyer shall not either in-person or by live telephone contact,
solicit professional employment from a prospective client with whom the
lawyer
has no family or prior professional relationship where a significant motive
for the lawyer's doing so is the lawyer's pecuniary gain.
(b)A lawyer shall not solicit professional employment from a
prospective client by written, recorded or electronic communication or by
in-person or telephone contact even when not otherwise prohibited by
paragraph (a), if:
(1)the prospective client has made known to the lawyer a desire not to be
solicited by the lawyer; or
(2)the solicitation involves coercion, duress or harassment.
(c)A lawyer shall not solicit professional employment from a
prospective client believed to be in need of legal services which arise out of
the personal injury or death of any person by written, recorded, or electronic
communication. This provision shall not apply if the lawyer has a family or
prior professional relationship with the prospective client, or if the
communication is issued more than 30 days after the occurrence of the event for which the legal representation is being solicited. Any such
communication must comply with Rule 7.1, Rule 7.2 and the following:
(1)No such communication may be made if the lawyer knows or reasonably
should know that the person to whom the communication is directed is represented by a lawyer in the matter.
(2)If a lawyer other than the lawyer whose name or signature is
contained in the communication will actually handle the case or matter, or if
the case or matter will be referred to another lawyer or law firm, any such communication shall include a statement so advising the prospective
client.
(3)No such communication shall be made to resemble legal pleadings or other legal documents.
(4)Any such written or recorded communication shall not reveal on the
envelope or on the outside of a self-mailing brochure or pamphlet the nature of the prospective client's legal problem.
(5)A copy of or recording of such communication and a sample of the
envelopes in which the communications are enclosed shall be kept for a period
of four years from the date of dissemination of the communication.
(d)Every written, recorded or electronic communication governed by
this Rule 7.3 shall include the words "this is an advertisement" in a form
that
is clear and conspicuous on the outside of the envelope, if any, and at the
beginning and end of any written, recorded or electronic communication.
COMMENT
There is a potential for abuse inherent in direct in-person or live
telephone contact by a lawyer with a prospective client known to need legal
services. These forms of contact between a lawyer and a prospective client
subject the layperson to the private importuning of the trained advocate in a
direct interpersonal encounter. The prospective client, who may already feel
overwhelmed by the circumstances giving rise to the need for legal services,
may find it difficult fully to evaluate all available alternatives with
reasoned judgment and appropriate self-interest in the face of the lawyer's
presence and insistence upon being retained immediately. The situation is
fraught with the possibility of undue influence, intimidation, and
over-reaching.
This potential for abuse inherent in direct in-person or live telephone
solicitation of prospective clients justifies its prohibition, particularly
since lawyer advertising and written and recorded communication permitted
under
Rule 7.2 offer alternative means of conveying necessary information to those
who may be in need of legal services. Advertising and written and recorded
communications which may be mailed or auto dialed make it possible for a
prospective client to be informed about the need for legal services, and
about the qualifications of available lawyers and law firms, without
subjecting the prospective client to direct in-person
or telephone persuasion that may overwhelm the client's judgment.
The use of general advertising and written and recorded communications to
transmit information from lawyer to prospective client, rather than direct
in-person or live telephone contact, will help to assure that the
information flows cleanly as well as freely. The contents of advertisements
and communications permitted under Rule 7.2 are permanently recorded so that
they cannot be disputed and may be shared with others who know the lawyer.
This potential for informal review is itself likely to help guard against
statements and claims that might constitute false and misleading
communications, in violation of Rule 7.1. The contents of direct in-person
or
live telephone conversations between a lawyer to a prospective client can be
disputed and are not subject to third-party scrutiny. Consequently,
they are much more likely to approach (and occasionally cross)
the dividing line between accurate representations and those that are false
and misleading.
There is far less likelihood that a lawyer would engage in abusive
practices
against an individual with whom the lawyer has a prior personal or
professional
relationship or where the lawyer is motivated by considerations other than
the
lawyer's pecuniary gain. Consequently, the general prohibition in Rule 7.3(a)
and the requirements of Rule 7.3(c) are not applicable in those
situations.
But even permitted forms of solicitation can be abused. Thus, any
solicitation which contains information which is false or misleading within the
meaning of Rule 7.1, which involves coercion, duress or harassment within the
meaning of Rule 7.3(b)(2), or which involves contact with a prospective client
who has made known to the lawyer a desire not to be solicited by the lawyer
within the meaning of Rule 7.3(b)(1) is prohibited. Moreover, if after sending
a letter or other communication to a client as permitted by Rule 7.2 the lawyer receives no response, any further effort to communicate with the
prospective client may violate the provisions of Rule 7.3(b).
This Rule is not intended to prohibit a lawyer from contacting
representatives of organizations or groups that may be interested in
establishing a group or prepaid legal plan for their members, insured,
beneficiaries or other third parties for the purpose of informing such
entities
of the availability of and details concerning the plan or arrangement which
the
lawyer or lawyer's firm is willing to offer. This form of communication is
not
directed to a prospective client. Rather, it is usually addressed to an
individual acting in a fiduciary capacity seeking a supplier of legal
services
for others who may, if they choose, become prospective clients of the lawyer.
Under these circumstances, the activity which the lawyer undertakes in
communicating with such representatives and the type of information
transmitted to the individual are functionally similar to and serve the same
purpose as advertising permitted under Rule 7.2.
The requirement that certain communications be marked
"This Is An Advertisement" does not apply to communications sent in response
to
requests of potential clients or their spokespersons or sponsors. General
announcements by lawyers, including changes in personnel or office location,
do
not constitute communications soliciting professional employment from a
client known to be in need of legal services within the meaning of this Rule.
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ANNOTATIONSSource:
Entire rule and comment amended and adopted and committee comment
deleted by amendment June 12, 1997, effective January 1, 1998.
ANNOTATION
Annotator's note.
Rule 7.3 is similar to
DR 2-101, DR 2-103, and DR 2-104
as they
existed prior to the 1992 repeal and reenactment of the Code of
Professional Responsibility.
Relevant cases construing
DR 2-101 have been included under Rule 7.1, cases construing DR 2-103 have been
included under Rule 1.5, and cases construing DR 2-104 have been included under
Rule 1.16.
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