Routine Users of Legal Services

Routine Users of Legal Services

Rule 7.3(b)(3) names the third category of permitted live contact: a "person who routinely uses for business purposes the type of legal services offered by the lawyer."¹ The first two categories ask who the target is (a lawyer)² and whom the target knows (the soliciting lawyer or firm).³ This one asks what the target does, which is to buy legal services in a particular way. The single sentence holds three qualifiers: routine use, business purposes, and the same type of service. The target must satisfy all three for the very service offered, and a contact that meets two and fails the third stays inside the ban in paragraph (b).

Each qualifier traces to the danger the ban addresses. In Ohralik v. Ohio State Bar Association, the Court observed that most lay people are unfamiliar with the law, with how legal services normally are procured, and with typical arrangements between lawyer and client.⁴ Such a person is easy to rush. Without a sense of what a fair offer looks like, the person has little basis for refusing, and a live encounter adds pressure, demands an immediate answer, and leaves no chance for comparison or reflection.⁵ A business that retains outside counsel as a regular part of its operations is a different kind of target. It has likely requested proposals, compared firms, and turned lawyers away before, so a lawyer's live presence carries far less leverage. The same reasoning exempts another lawyer, whose familiarity with practice lowers the risk of being misled, and paragraph (b)(3) extends it to a nonlawyer who has gained comparable familiarity by buying repeatedly. The rule text states the exception without explaining it, so this account is a reasoned extension of the ban's purpose. It helps because each qualifier can be tested by asking whether it supplies the buyer's experience.

The first qualifier, routine use, is a question of frequency, and frequency matters because experience comes from repetition. A target that retains counsel regularly has learned how fees are quoted, how firms are compared, and how to end a conversation that is going nowhere. A target that has never retained a lawyer, or has done so once, has learned none of that, and an uninvited face-to-face offer recreates the exposure that justified the ban. The text sets no minimum number of engagements, so resolve a borderline case by asking whether regular buying has given this target a working familiarity with how the market operates.

Routine use alone does not complete the exception, because the target's experience has to be the right experience. The second qualifier, business purposes, asks why the target buys legal help. A grocery-chain owner may have years of experience buying lease work for the chain, but she gained it as a business operator, and it says little about how to choose a divorce lawyer. A personal crisis also tends to arrive with distress and without any institutional buying process. That is the setting in which a live approach is hardest to resist, and the Court recognized that the target of a solicitation may have difficulty avoiding being importuned and distressed even when the lawyer is entirely well meaning.⁶

The third qualifier ties the exception to the field of service. A buyer who has hired lease counsel for years knows what good lease work costs and how to vet it, but that buyer has no benchmark for an offer to defend a wage-and-hour class action. The text does not say how finely a type of service is drawn, so a close case turns on whether the target's routine buying gives it a real basis for evaluating the service now offered.

Keep this exception apart from the lawyer exception, because both surface on corporate facts. A company's in-house counsel is a lawyer, so a call to the general counsel is excused by paragraph (b)(1) whatever the company's buying habits.⁷ A purchasing manager or business owner who is not a lawyer cannot invoke that paragraph. A call to that person is excused, if at all, only because paragraph (b)(3) is satisfied on its own terms, with routine use, business purpose, and the same type of service each shown. An exam stem that calls the target a sophisticated corporation, without saying whom the lawyer called or what that person buys, has left the (b)(3) question unanswered.

A complete answer therefore walks each qualifier and names the fact that supplies it or the fact that is missing. Satisfying the category lifts only the ban in paragraph (b), exactly as with the other two categories, so Rule 7.3(c) still has to be checked before the call is made. The next section explains how.