August 1, 2006 March 1, 2016
DIRECT CONTACT WITH PROSPECTIVE SOLICITATION OF CLIENTS
1 (a) A lawyer, or the lawyer's representative, shall not by in-person or telephone contact, or
2 other real-time contact, solicit professional employment from
a prospective client anyone
3 known to be in need of legals services in a particular matter when a significant motive for
4 the solicitation is the lawyer's pecuniary gain unless the person contacted:
5 (1) is a lawyer; or
6 (2) has a family, personal, or prior professional relationship with the lawyer.
7 (b) A lawyer shall not solicit professional employment
from a prospective client by written,
8 recorded, or electronic communication or by in-person, telephone , or real-time contact even
9 when not otherwise prohibited by paragraph (a), if:
10 (1) the
prospective client target of the solicitation has made known to the lawyer a desire not
11 to be solicited by the lawyer;
12 (2) the solicitation involves coercion, duress, or harassment; or
13 (3) the receipt of the solicitation is uninvited and imposes any involuntary economic cost on
14 the prospective client to respond to the solicitation.
15 (c) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid
16 or group legal service plan operated by an organization not owned or directed by the lawyer
17 which uses in-person or telephone contact to solicit memberships or subscriptions for the
18 plan from persons who are not known to need legal services in a particular matter covered
19 by the plan.
21  A solicitation is a targeted communication initiated by the lawyer that is directed to a
22 specific person and that offers to provide, or can reasonably be understood as offering to
23 provide, legal services. In contrast, a lawyer's communication typically does not constitute
24 a solicitation if it is directed to the general public, such as through a billboard, an Internet
25 banner advertisement, a website or a television commercial, or if it is in response to a request
26 for information or is automatically generated in response to Internet searches.
1 2] The lawyer is a trained advocate and the client in need of legal services may be
28 emotionally vulnerable. As a result,
the prospective client a person in need of legal services,
29 who may be overwhelmed by the circumstances giving rise to the need for legal services,
30 may find it difficult to fully evaluate all available alternatives with reasoned judgment in the
31 lawyer's presence and insistence upon immediate retention. Such a situation is fraught with
32 the possibility of undue influence, intimidation, unaccountable misrepresentation and
2 3] Other forms of client development solicitation are permissible under these rules,
35 offering lawyers alternative means of conveying necessary information to those who may be
36 in need of legal services. Advertising may be communicated via virtually any type of media.
37 Materials may be mailed
to potential clients in most circumstances and the Internet is
38 available for lawyers to present a vast array of credentials in an affordable way, without
the prospective client a person known to be in need of legal services to persuasion
40 that may overwhelm the
client's the person's judgment.
3 4] Additionally, the contents of advertising and other non-direct communications
42 permitted in these rules can be permanently recorded so that they cannot be disputed. This
43 potential for informal review is itself likely to help guard against statements and claims that
44 might constitute false or misleading communications in violation of Rule 7.1. The contents
45 of direct communications between a lawyer and a
prospective client person known to be in
46 need of legal services can be disputed and are not subject to verification and the protection
47 that can derive from a record. Consequently, the direct communication is more likely to
48 approach the line between accurate representations and those that are false or misleading.
4 5] There are several circumstances in which direct communications with prospective
50 clients are permitted including when the prospective client is a lawyer, a family member, a
51 current or prior client or where the lawyer accepts the case without any pecuniary gain.
5 6] Any solicitation that contains information that is unlawful or is false or misleading
53 within the meaning of Rule 7.1 is prohibited. Additionally, any solicitation that involves
54 contact with
a prospective client person who has indicated a desire to the lawyer not to be
55 solicited, any solicitation that involves coercion, duress or harassment, or any solicitation that
56 imposes any involuntary economic cost
to respond on the prospective client are all
57 impermissible under this rule. If after sending a letter or other communication to a
prospective client a person known to be in need of legal services in a manner that is
59 permissible by these rules, a lawyer receives no response, any further effort to communicate
60 with the
prospective client person may be deemed harassment under this rule. Likewise,
61 multiple uninvited e-mail messages could fall under this category.
6 7] Paragraph (c) of this Rule permits a lawyer to participate with an organization that uses
63 personal contact to solicit members for its group or prepaid legal service plan, provided that
64 the personal contact is not undertaken by any lawyer who would be a provider of legal
65 services through the plan. The organization referred to in paragraph (c) must not be owned
66 by or directed (whether as manager or otherwise) by any lawyer of law firm that participates
67 in the plan. For example, paragraph (c) would not permit a lawyer to create an organization
68 controlled directly or indirectly by the lawyer and use the organization for direct solicitation
69 of legal employment of the lawyer through memberships in the plan or otherwise. The
70 communication permitted by these organizations must also not be directed to a person known
71 to need legal services in a particular matter, but is to be designed to inform potential plan
72 members generally of another means of affordable legal services. Lawyers who participate
73 in a legal service plan must reasonably assure that the plan sponsors are in compliance with
74 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
(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.
Carol Ronning Kapsner
Dale V. Sandstrom
135 Rule 7.3 amended effective 03/01/04, 08/01/06, 03/01/16.
136 Reference: Minutes of Joint Committee on Attorney Standards on 06/08/99, 09/16/99,
137 11/19/99, 03/23/00, 06/13/00, 09/15/00, 11/17/00, 06/11/02, 09/12/02, 11/15/02,
138 06/24/03, 06/10/14, 09/12/14.