Exceptions and Rule 7.3(c)

Exceptions and Rule 7.3(c)

Rule 7.3(c) forbids a lawyer to solicit professional employment "even when not otherwise prohibited by paragraph (b)," so a contact that fits an exception can still be forbidden.¹ The exceptions in paragraph (b) answer one question: whether the ban in paragraph (b) reaches this target. Paragraph (c) asks a second question about this person and this contact. It names two circumstances that defeat an exception: the target has made known to the lawyer a desire not to be solicited, or the solicitation involves coercion, duress, or harassment.² The contacts at issue here are the live ones, meaning in person, by live telephone, and by real-time electronic communication. Email ordinarily is not real-time and is treated as direct mail.³

The second layer exists because of what the ban on live contact is aimed at. In Ohralik, the Supreme Court explained that "[u]nlike a public advertisement, which simply provides information and leaves the recipient free to act upon it or not, in-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection."⁴ Advertising stands on different footing, because since Bates attorney advertising has been protected commercial speech.⁵ The pressure of the live encounter is therefore the danger the ban targets. The categories in paragraph (b), which cover a lawyer, a person with a family, close personal, or prior business or professional relationship with the lawyer or firm, and a routine business user of the service offered, mark out targets for whom that pressure is presumably less worrying. A category is still a generalization about a class, and a generalization cannot see how one member of the class is actually faring.

Paragraph (c) corrects the generalization in two ways. The first limit turns on the target's own statement. A relative or former client who has made known a desire not to be solicited has shown that this person is not a willing audience, and further contact applies the very pressure the exception assumed the target could resist. Because the limit depends on what the target has made known to the lawyer, an objection that was never voiced, or that was voiced only to someone else, does not by itself trigger it. The second limit turns on the lawyer's conduct. Coercion, duress, and harassment describe what the lawyer does and not what the target has said, so the limit applies even when the target has voiced no objection. A close relationship or a long history of representation does not cure it either, because the category that excused the contact under paragraph (b) says nothing about whether the contact was carried out decently.

Two hypotheticals show each limit in operation.

Two other provisions in Rule 7.3 are easy to mistake for exceptions under paragraph (b), and they work differently from its three categories. Paragraph (d) provides that the Rule does not prohibit communications authorized by law or ordered by a court or other tribunal.⁶ Its test is the source of authority for the communication, so a lawyer who makes a contact because a court has ordered it never has to place the recipient in a category. Paragraph (e) permits a lawyer to participate with a prepaid or group legal service plan that is operated by an organization the lawyer does not own or direct, and that uses live person-to-person contact to enroll members or sell subscriptions to persons not known to need legal services in a particular matter the plan covers.⁷ Its test is the structure of the plan and the absence of a known particular need, so the categories in paragraph (b) play no part. A stem that describes plan enrollment or a court-ordered notice and asks which paragraph (b) exception applies sets a trap, because none applies and none is needed.