Concept
Limits on the Final Screen
Is the solicitation barred anyway under Rule 7.3(c)?
Limits on the Final Screen
Paragraph (c) of Rule 7.3 is the final screen. A lawyer may not solicit a target who has made known a desire not to be solicited by the lawyer, and a lawyer may not solicit when the solicitation involves coercion, duress, or harassment.1 As the earlier sections show, both triggers apply on top of the exceptions to paragraph (b), so a friend, a relative, or a former client can be shielded from a contact those exceptions would otherwise allow. A screen with that much force invites a question: does it govern every communication the Rule describes?
It does not. Two provisions that follow paragraph (c) keep certain channels open: communications authorized by law or ordered by a tribunal, and a lawyer's participation with certain legal service plans. Each is drafted to speak to the Rule as a whole, which sets both apart from the exceptions to paragraph (b), because those exceptions excuse only the live contact that paragraph restricts. The wording of each provision therefore fixes how far it reaches, and the sections below follow that wording without stretching it.
A contrary reading would empty both provisions of content. The Rule would preserve a channel in one paragraph and then let a general protective paragraph close it in the next. The coherent reading treats paragraph (c) as the last screen for the contacts the Rule regulates, and treats paragraphs (d) and (e) as marking communications the Rule leaves alone or expressly permits.
Authorized or Ordered Communications
Rule 7.3(d) states that the Rule “does not prohibit communications authorized by law or ordered by a court or other tribunal.”2 The subject of that sentence is the whole Rule. It is not paragraph (b), and it is not live contact. That choice of subject fixes the reach of the carve-out. The exceptions to paragraph (b) can excuse only the live contact that paragraph restricts, and the two triggers of paragraph (c) then sit on top of those exceptions. Paragraph (d) is not confined that way. A communication within it lies outside every prohibition in Rule 7.3, so a target's refusal under paragraph (c)(1) cannot bar a notice that the law authorizes or a tribunal has ordered.3
The carve-out rests on two sensible grounds. The first is that the risks the solicitation rules address arise when a lawyer chooses the moment and the message of an approach. A statute that authorizes a communication, or a tribunal that orders one, has set the occasion in the lawyer's place. The second is fairness to the lawyer. Counsel who mail a notice because a court ordered it should not face discipline for obeying, since one authority would otherwise command the communication while another punished it.
The first mailing is protected for every recipient, Vega included, because a tribunal directed it, and her refusal under paragraph (c)(1) does not reach it. The second mailing has no such source. The shared mailing list does not carry the protection over, because the carve-out attaches to a communication that is authorized or ordered, not to a lawyer or a group of recipients. The second letter is a lawyer-initiated offer to people who need legal services in a particular matter, so it runs through the ordinary sequence described earlier in this chapter. As to Vega, her refusal bars it under paragraph (c)(1).4
The protection reaches only what actually exists. The text covers communications “authorized by law or ordered by a court or other tribunal,” so some law or order must in fact be there.5 A marketing letter does not gain that protection by borrowing the look of an official document, such as a caption, a heading that announces a legal notice, or a reference to pending litigation. The protection also stops at the edge of the authorization. An order to mail one approved notice authorizes that notice. If counsel adds a pitch of their own, or follows the mailing with repeated calls urging recipients to sign on, the added contact is the lawyer's own initiative and is tested like any other solicitation, including under the harassment clause of paragraph (c)(2).6 When a problem describes a mailing to a group as a notice, ask two questions: who directed it, and did the contact stay inside that direction?
Group Legal Service Plans
Rule 7.3(e) opens with the words “Notwithstanding the prohibitions in this Rule” and then 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. The plan may use live person-to-person contact to enroll members or sell subscriptions, but only from persons who are not known to need legal services in a particular matter covered by the plan.9 The opening phrase points to the prohibitions of the whole Rule. That makes paragraph (e) wider than the exceptions to paragraph (b) for another lawyer and for persons with whom the lawyer has a family, close personal, or prior professional relationship, because those exceptions excuse only the live-contact bar.10 For participation of the kind the text describes, the final screen in paragraph (c) is among the prohibitions that paragraph (e) overrides.
The two limits in the text track the danger that justifies the live-contact ban. The Supreme Court has explained that, unlike a public advertisement, in-person solicitation “may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection.”11 An enrollment pitch to people who are not known to need legal services in a particular matter carries less of that pressure, because the plan is selling coverage and is not responding to a specific problem. Those people can also weigh the plan against the alternatives. Without the provision, the live-contact ban would reach a plan's live enrollment efforts and make a lawyer's participation hazardous.
The first limit is independence. The plan must be operated by “an organization not owned or directed by the lawyer.”12 Because the text says “owned or directed,” a lawyer who holds no title but controls the plan's operations is as disqualified as one who owns it. The evident purpose is to keep the plan from becoming the lawyer's alter ego. A plan that is really the lawyer's own marketing arm would send representatives who act for the lawyer, so a plan label would turn every prohibited live approach into a permitted one.
A different result follows when the lawyer controls the organization running the same live enrollment effort.
The second limit concerns whom the plan approaches. The persons contacted must not be “known to need legal services in a particular matter covered by the plan.”13 Enrollment aimed at employees or members as a group is a pitch for future coverage, and it has no known individual need as its target. A plan representative who learns that a worker was fired yesterday, and approaches her to sell a subscription covering that very wrongful-discharge claim, has chosen the target by a known need. That contact falls outside the text, so paragraph (e) gives the lawyer's participation in it no protection, and the contact is tested under the rest of the Rule. The carve-out is as wide as its two conditions and no wider.
Both carve-outs are narrow in the same way. Each speaks to the whole Rule, and each protects only what its own words describe. A letter with no law or order behind it, a plan the lawyer controls, and a pitch aimed at someone with a known covered problem all remain subject to the sequence, including the final screen in paragraph (c). The next section runs that sequence from start to finish.