RULE 7.3 - DIRECT CONTACT WITH PROSPECTIVE CLIENTS
(a) A lawyer, or the lawyer's representative, shall not by in-person or telephone contact, or other real-time contact, solicit professional employment from a prospective client who is not a lawyer and who has not invited the solicitation when the lawyer has no family or current or prior professional relationship and when a significant motive for the solicitation is the lawyer's pecuniary gain.
(b) A lawyer shall not solicit professional employment from a prospective client by written or recorded 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;
(2) the solicitation involves coercion, duress, or harassment; or
(3) the receipt of the solicitation is uninvited and imposes any involuntary economic cost on the prospective client to respond to the solicitation.
(c) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer which uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.
Direct contacts, whether in-person, over the telephone or through Internet chat rooms, with certain potential clients create a potential for abuse. The lawyer is a trained advocate and the client in need of legal services may be emotionally vulnerable. As a result, the prospective client, who may be overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult to fully evaluate all available alternatives with reasoned judgment in the lawyer's presence and insistence upon immediate retention. Such a situation is fraught with the possibility of undue influence, intimidation, unaccountable misrepresentation and over-reaching.
The potential for abuse justifies a prohibition of direct solicitation under certain circumstances, particularly since other forms of client development are permissible under these rules, offering lawyers alternative means of conveying necessary information to those who may be in need of legal services. Advertising may be communicated via virtually any type of media. Materials may be mailed to potential clients in most circumstances and the World Wide Web is available for lawyers to present a vast array of credentials in an affordable way. None of these media are likely to subject the prospective client to persuasion that may overwhelm the client's judgment.
Additionally, the contents of advertising and other non-direct communications permitted in these rules can be permanently recorded so that they cannot be disputed. This potential for informal review is itself likely to help guard against statements and claims that might constitute false or misleading communications in violation of Rule 7.1. The contents of direct communications between a lawyer and a prospective client can be disputed and are not subject to verification and the protection that can derive from a record. Consequently, the direct communication is more likely to approach the line between accurate representations and those that are false or misleading.
There are several circumstances in which it is unlikely a lawyer would engage in over-reaching, and the prohibition of direct communication is not necessary. Therefore, direct communications with prospective clients are permitted if the prospective client is a lawyer, someone who has invited the communication, a family member, a current or prior client or where the lawyer accepts the case without any pecuniary gain.
But even permitted forms of solicitation can be abused. Thus any solicitation that contains information that is unlawful or is false or misleading within the meaning of Rule 7.1 is prohibited. Additionally, any solicitation that involves contact with a prospective client who has indicated a desire to the lawyer not to be solicited, any solicitation that involves coercion, duress or harassment, or any solicitation that imposes any involuntary economic cost to respond on the prospective client are all impermissible under this rule. If after sending a letter or other communication to a prospective client in a manner that is permissible by these rules, a lawyer receives no response, any further effort to communicate with the prospective client may be deemed harassment under this rule. Likewise, multiple uninvited e-mail messages could fall under this category.
Paragraph (c) of this Rule permits a lawyer to participate with an organization that uses personal contact to solicit members for its group or prepaid legal service plan, provided that the personal contact is not undertaken by any lawyer who would be a provider of legal services through the plan. The organization referred to in paragraph (c) must not be owned by or directed (whether as manager or otherwise) by any lawyer of law firm that participates in the plan. For example, paragraph (c) would not permit a lawyer to create an organization controlled directly or indirectly by the lawyer and use the organization for direct solicitation of legal employment of the lawyer through memberships in the plan or otherwise. The communication permitted by these organizations must also not be directed to a person known to need legal services in a particular matter, but is to be designed to inform potential plan members generally of another means of affordable legal services. Lawyers who participate in a legal service plan must reasonably assure that the plan sponsors are in compliance with the other rules governing communications concerning the services of a lawyer.
Reference: Minutes of Joint Committee on Attorney Standards on 06/08/99, 09/16/99, 11/19/99, 03/23/00, 06/13/00, 09/15/00, and 11/17/00.