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focusing on the concept that such arrangements must not compromise a lawyer’s independent
professional judgment.
Rule 7.3 (Solicitation of Clients)
As noted, proposed rule 7.3 would regulate marketing of legal services through direct contact
with a potential client either by real-time communication such as delivered in-person or by
telephone, or by directly targeting a person known to be in need of specific legal services
through other means, e.g., letter, email, text, etc. It carries forward concepts that are found in
current rule 1-400(B), (C), (D)(5) and Standard Nos. 3, 4, and 5.
Paragraph (a), derived from Model Rule 7.3(a), carries forward the concept of current rule 1-
400(C), which contains the basic prohibition against what is traditionally understood to constitute
improper “solicitation” of legal business by a lawyer engaging in real-time communication with
potential clients. The concern is the ability of lawyers to employ their “skills in the persuasive
arts” to overreach and convince a person in need of legal services to retain the lawyer without
the person having had time to reflect on this important decision. The provision thus eliminates
the opportunity for a lawyer to engage in real-time (i.e., contemporaneous and interactive)
communication with a potential client. The term “real-time electronic contact” has been added
from Model Rule 7.3 because the same concerns regarding in-person or live telephone
communications applies to real-time electronic contact such as communications in a chat room
or by instant messaging. The two exceptions to such solicitations are included because there is
significantly less concern of overreaching when the solicitation target is another lawyer or has
an existing relationship with the soliciting lawyer.
Paragraph (b), derived from Model Rule 7.3(b), is a codification of Shapero v. Kentucky Bar
Ass’n (1988) 486 U.S. 466, in which the Supreme Court held that a state could not absolutely
prohibit direct targeted mailings. The provision, however, recognizes that there are
circumstances under which even any kind of communication with a client, including those
permitted under rule 7.2, should be prohibited. Such circumstances include when the person
being solicited has made known to the lawyer a desire not to be contacted or when the
solicitation by the lawyer “is transmitted in any manner which involves intrusion, coercion, duress
or harassment.” The latter situation largely carries forward the prohibition in current rule 1-
400(D)(5). The Commission, however, determined that additional language in the latter
provision, i.e., “compulsion,” “intimidation,” “threats” and “vexatious conduct,” are subsumed in
the four recommended terms: “intrusion, coercion, duress and harassment.”
Paragraph (c), derived from Model Rule 7.3(c), largely carries forward current rule 1-400,
Standard No. 5, and requires that every written, recorded or electronic communication from a
lawyer seeking professional employment from a person known to be in need of legal services in
a particular matter, i.e., direct targeted communications, must include the words “Advertising
Material” or words of similar import. The provision is intended to avoid members of the public
being misled into believing that a lawyer’s solicitation is an official document that requires their
response.
Paragraph (d), derived from Model Rule 7.3(d), would permit a lawyer to participate in a pre-
paid or group legal service plan even if the plan engages in real-time solicitation to recruit
members. Such plans hold promise for improving access to justice. Further, unlike a lawyer’s
solicitation of a potential client for a particular matter where there exists a substantial concern
for overreaching by the lawyer, there is little if any concern if the plan itself engages in in-
person, live telephone or real-time electronic contact to solicit memberships in the plan.