Effective March 1, 2004
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 when a significant motive for the solicitation is the lawyer's pecuniary gain unless the person contacted:
(b) A lawyer shall not solicit professional employment from a prospective client by written, recorded, or electronic communication or by in-person, telephone, or real-time contact even when not otherwise prohibited by paragraph (a), if:
(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.
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.
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 Internet is available for lawyers to present a vast array of credentials in an affordable way, without subjecting 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 direct communications with prospective clients are permitted including when the prospective client is a lawyer, a family member, a current or prior client or where the lawyer accepts the case without any pecuniary gain.
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.
I respectfully dissent.
I start with the proposition that disciplinary rules are not aspirational rules; they are rules to define conduct that is intolerable or incompatible with the practice of law and the conduct of the profession and to provide the basis for disciplining the lawyer who engages in such conduct. A lawyer’s direct in-person communication with a non-lawyer can be abusive. Rule 7.1, prior to these amendments, prohibited such abusive conduct. It provided, in part:
(b) A lawyer shall not, by in-person contact made by the lawyer or the lawyer’s representative, suggest or request that a nonlawyer employ the lawyer if the nonlawyer has not sought advice from the lawyer or the person professionally associated with the lawyer regarding employment of a lawyer and:
(1) the suggestion or request involves use of a statement or claim that is false or misleading, within the meaning of subsection (a); or
(2) the suggestion or request involves the use of undue influence, coercion, duress, compulsion, intimidation, threat, or vexatious or harassing conduct; or
(3) the lawyer or representative knows or reasonably should know that the potential client’s physical or mental condition makes it unlikely that the potential client can exercise reasonable, considered judgment as to the potential employment; or
(4) the suggestion or request involves use of a representative and the lawyer knows or reasonably should know that such conduct violates the representative’s contractual or other legal obligations.
(c) A lawyer shall not contact, in person or through a representative, a nonlawyer for the purpose of suggesting or requesting that the nonlawyer employ the lawyer or a person professionally associated with the lawyer if the lawyer or representative knows or reasonably should know that the potential client does not wish to be contacted for this purpose.
Prior Rule 7.1 dealt with the situation frequently described as “ambulance chasing,” when a prospective client is particularly vulnerable, and a lawyer who engaged in such conduct could be disciplined under it. The language quoted above has been deleted from Rule 7.1 and replaced with a new rule, Rule 7.3, dealing with direct contact with prospective clients.
Rule 7.3 makes sanctionable direct in-person contact that I would describe as ordinary commercial speech. I posit three examples which are sanctionable under this new rule.
A new lawyer moves to town in North Dakota. The lawyer walks up and down main street of her new town and hands out business cards, introducing herself and telling the people to whom the lawyer gives her business card that she would appreciate being able to assist them if they have legal needs.
A lawyer sitting at a banquet overhears another person sitting at the same table describe a problem he is having. The lawyer says to that person: “My firm has had experience in dealing with that issue. We would certainly be interested in helping you resolve it.”
After giving a speech to a local trade association, the lawyer socializes with its members. In conversation with a member the lawyer has never met before, he says to the member, “I know this is a problem you will be dealing with soon. With the information I’ve given you today, you’ll recognize the need for legal help and I hope you will come to me.”
None of the lawyers has violated the former Rule 7.1, but all of the lawyers have violated Rule 7.3(a) if they are hoping to get paid for their work.
This overly broad rule may make it more difficult for newly admitted lawyers to get established in the profession and will give an advantage to those firms with the resources and inclination to engage in expensive media advertising.
I do not believe Rule 7.3 could survive constitutional scrutiny, if challenged under the First Amendment. See Thompson v. W. States Med. Ctr., 535 U.S. 357 (2002); Greater New Orleans Broad. Ass’n v. United States, 527 U.S. 173 (1999). The fact that this Court promulgates a rule to regulate a profession rather than ordinary commercial speech does not immunize it from challenge. Republican Party of Minn. v. White, 536 U.S. 765 (2002); Ibanez v. Florida Dep’t of Bus. & Prof’l Regulation, 512 U.S. 136 (1994).
Because I believe prior Rule 7.1 appropriately dealt with unethical in-person contact, I dissent from the amendments to that rule. Because I believe Rule 7.3 is more extensive than necessary to serve this Court’s interest in disciplining lawyers whose in-person contact with prospective clients is incompatible with the standards of our profession, I dissent from the adoption of Rule 7.3.