The Final Screen Under Rule 7.3(c)

Unwanted and Coercive Solicitation

The Final Screen Under Rule 7.3(c)

Rule 7.3(c) is the last check a solicitation must pass. It forbids a lawyer to solicit professional employment "even when not otherwise prohibited by paragraph (b)," if either of two listed conditions is present.¹ Those opening words make paragraph (c) independent of paragraph (b). A lawyer who shows that (b) does not reach a contact has answered only part of the question.

The analysis therefore runs in layers. The first layer is the definition. A solicitation is a communication initiated by or on behalf of a lawyer or law firm, directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter, and offering, or reasonably understood as offering, to provide legal services for that matter.² If any element is missing, nothing is being solicited and no later screen applies. The second layer is paragraph (b) and the exceptions to it. The third layer is paragraph (c), which matters most for contacts that (b) leaves alone.

The definition says nothing about the medium, so a mailed letter or an email to a person the lawyer knows has just suffered a particular legal problem can qualify. Email, however, would not ordinarily be regarded as real-time electronic communication, and it typically is regulated as a form of direct mail under Rule 7.3(c).³ A message of that kind is not live, so the prohibition on live contact does not catch it, and paragraph (c) is the provision that still governs it.

The exceptions work the same way. Communications with certain categories of persons are exempted from the proscription on direct solicitation, namely another lawyer and those with whom the lawyer has a family, close personal, or prior professional relationship.⁴ A relative, a close friend, or a former client may therefore be approached directly. The exemption, though, sorts targets by category. It does not ask what this particular target has said or how this particular lawyer behaves, and those are the questions paragraph (c) asks.

Two conditions bring paragraph (c) into play. One looks to the target: the target has made known to the lawyer a desire not to be solicited by the lawyer.⁵ The other looks to the lawyer: the solicitation involves coercion, duress, or harassment.⁶ The first turns on the target's expressed wish and the second on the manner of the approach. Neither depends on the target's category, so an exception to (b) does not answer either one. The sections below take each condition in turn.

Exam stems often describe the target as a friend, a relative, or a former client and invite you to conclude that the contact is permitted. Your next question should be whether the facts show that the target said no or that the lawyer pushed.

Patel's earlier message decides the outcome. Paragraph (c) looks to whether the target has made known to the lawyer a desire not to be solicited by the lawyer, and once that condition is met the friendship, the exception, and the non-live medium drop out of the analysis.⁷ Had Patel never said anything of the kind, the identical email would pass every screen. Likewise, a lawyer who telephones a former client to offer help with a new matter falls within the prior-professional-relationship exception.⁸ If the former client has not objected and the lawyer applies no coercion, duress, or harassment, neither condition in (c) is present and the contact is permitted.⁹

Paragraph (c) also presupposes that a solicitation exists. The definition reaches only communications initiated by or on behalf of a lawyer, so a person who reaches out first has not been solicited, and the lawyer's answers fall outside the whole sequence.¹⁰

Suppose the lawyer instead mailed an unprompted letter to that same tenant. The letter would be a solicitation that clears paragraph (b) because it is not live, and it would then have to satisfy paragraph (c).