Other Contact Outside the Ban

Other Contact Outside the Ban

A contact that satisfies every element of the direct solicitation ban can still be lawful, because Rule 7.3 withdraws two kinds of contact from the ban's reach. The ban itself forbids live person-to-person solicitation when a significant motive is the lawyer's or law firm's pecuniary gain, and the rule separately excepts contacts with certain listed persons.¹ The ban reaches contact in person, by live telephone, and by real-time electronic communication.² The two carve-outs in this section turn on where the contact comes from rather than on whom it targets. One covers communications authorized by law or ordered by a court or other tribunal;³ the other covers live enrollment efforts for a qualifying prepaid or group legal service plan.⁴ Each is identified here by what it says, not by paragraph letter, because the lettering differs among versions of the rule.

Both carve-outs are best read against the danger that justifies the ban. A direct back-and-forth exchange between a lawyer and a prospective client is “the private importuning of the trained advocate in a direct interpersonal encounter,” and the “situation is fraught with the possibility of undue influence, intimidation and over-reaching.”⁵ The danger is greatest when the person approached is unsophisticated, injured, or otherwise distressed, because “the overtures of an uninvited lawyer” may be intrusive, an invasion of privacy, and directed at a person vulnerable to improper influence.⁶ In each carve-out, something other than the lawyer's own private pursuit of a client stands behind the contact: a law or a tribunal in the first, an organization the lawyer does not own or direct in the second. A live, fee-motivated approach is therefore not a violation until both carve-outs have been ruled out.

Authorized or Ordered Communications

The first carve-out takes a single sentence: the Rule “does not prohibit communications authorized by law or ordered by a court or other tribunal.”⁷ The text names two sources of permission, a law that authorizes the communication and a court or other tribunal that orders it. It protects communications that would otherwise fall within the ban, however live they are and however much the lawyer stands to earn. The reason follows from the danger described above. A lawyer who sends what a court has ordered, or does what the law authorizes, is not engaged in private importuning, because the law or the tribunal, not the lawyer's pursuit of a fee, is the reason the message goes out. The carve-out also keeps the ban from colliding with a court's own directions.

The protection extends only as far as the authorization. The text covers communications that are authorized or ordered, so a lawyer who goes beyond what the law allows or the order directs receives no shelter for the excess, and the general ban governs it again. Contact with a class under a court's order shows where the line falls.

The two acts in the hypothetical share a lawyer, a court, and a class, yet only one is covered by the order. A fact pattern that mentions a judge's order or a statute has therefore not finished the analysis. The question is whether this particular contact is the one the law authorizes or the tribunal ordered, and when it is not, the analysis returns to the elements of the general ban.

Group and Prepaid Plan Enrollment

The second carve-out opens “Notwithstanding the prohibitions in this Rule” and permits a lawyer to “participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer.” The plan may use live person-to-person contact “to enroll members or sell subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.”⁹ Enrolling members in person or by live telephone is the kind of contact the general ban reaches,¹⁰ so the carve-out is what protects the lawyer who participates. A plan that enrolls by email is not using real-time contact at all, since email would not ordinarily be regarded as real-time electronic communication.¹¹ The permission carries three conditions.

A worker asked to join a plan before any covered legal problem is known has not been pressed about a problem he or she already has. That is the contrast with the distressed person approached by an uninvited lawyer, and it explains why the rule can allow live enrollment while forbidding live solicitation. The participating lawyer still gains from the plan's growth, so each condition closes a route by which the exception could be turned back into the conduct the ban forbids.

The first condition separates the plan from the lawyer. An organization the lawyer does not own or direct makes its own decisions about whom to approach and what to say, so its enrollment efforts are not the lawyer's own live solicitations carried out by another.

The second condition fixes the purpose of the contact. The text permits live contact “to enroll members or sell subscriptions for the plan,” so the pitch must be an invitation to join the plan.¹² A call that asks someone to hire a lawyer for a matter is a different thing, and this carve-out gives it no protection.

The third condition does the subtlest work, because it tracks the vulnerability that justifies the ban. The question is whether the person approached is known to need legal services in a particular matter that the plan covers, not whether the person might someday need a lawyer. A plan that targets people it knows to have a covered problem is soliciting them in the manner the ban was written to prevent.

Two errors recur. Some students treat a group or prepaid plan as free to telephone anyone, forgetting that the known-need limit follows the plan into every call. Others treat independent ownership as sufficient, forgetting that the contact must be for enrollment in the plan. Either shortcut skips a condition that the rule states in the same sentence as the permission.¹³