The Baseline Ban on Live Solicitation

The plan exception in Rule 7.3(e) carves a hole in a background rule, so that rule has to come first. A lawyer may not solicit professional employment by live person-to-person contact when a significant motive for doing so is the pecuniary gain of the lawyer or law firm, unless the contact is with someone in one of a short list of excepted categories.¹ Three paragraphs of Rule 7.3 produce that result. Paragraph (a) defines solicitation, paragraph (b) bans its live form, and paragraph (c) sets limits that still bind when (b) permits the contact. Taken in that order, they sort communications in three passes: which ones are solicitation at all, which of those are forbidden, and which permitted contacts nonetheless become improper.

Defining Solicitation

Rule 7.3(a) defines solicitation as 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 A communication must have every one of those features to qualify, so the definition works as a filter you can run on any message in a fact pattern.

The first feature turns on who started the exchange. A person who telephones a lawyer for help has initiated the contact, so the lawyer's answer is not solicitation. A message sent by a paralegal or marketing agent at the lawyer's direction is the lawyer's own solicitation, because the definition reaches communications made on the lawyer's behalf. The third feature is judged objectively, since the rule asks what the lawyer reasonably should know as well as what the lawyer actually knows. A lawyer who reads that a named person was seriously injured in a particular accident cannot escape the definition by declining to confirm what the report makes obvious. The phrase particular matter ties the need to an identifiable problem, such as that accident or that eviction, rather than to the general fact that anyone may someday need a lawyer.

Two messages from the same lawyer show the filter at work.

The two scenes show that the definition and the prohibition are separate questions. The definition covers written messages as well as spoken ones, so the addressed letter is solicitation, but the ban in paragraph (b), taken up next, reaches only live contact. The analysis therefore runs in order: first ask whether the communication is solicitation at all, and only then ask whether paragraph (b) forbids it.

The Ban on Live Contact

Once a communication qualifies as solicitation, paragraph (b) asks whether it takes the form the rule forbids. Two triggers must coincide. The solicitation must be made by live person-to-person contact, and a significant motive for making it must be the pecuniary gain of the lawyer or the firm. The motive need not be the only one, so a lawyer who also wants to help the target is still covered when fee income is a significant reason for the approach. Where pecuniary gain plays no significant part, the ban does not apply. Where the contact is not live, as with the addressed letter above, the ban does not apply either.

Paragraph (b) lists three categories of target for whom live contact remains permitted. They are another lawyer, a person with a family, close personal, or prior business or professional relationship with the lawyer or firm, and a person who routinely uses for business purposes the type of legal services the lawyer offers.⁴ Notice the form of these exceptions: every one depends on the identity of the person approached. The plan exception in paragraph (e) is built differently. It asks how the plan is organized and which people its live contacts reach.⁵

Limits That Survive the Exceptions

Paragraph (c) prohibits solicitation even when paragraph (b) does not, in two situations: the target has made known to the lawyer a desire not to be solicited by the lawyer, or the solicitation involves coercion, duress, or harassment.⁷ The wording of the paragraph defines its reach. It applies whenever (b) does not bar the contact, so it covers contact that falls within one of the three exceptions and contact that is not live at all, such as the addressed letter described earlier.

The first limit makes the target's own refusal controlling. A person who tells the lawyer no has said what the exceptions in (b) cannot override.

The second limit follows every category of target in the same way. Repeated calls meant to wear down a business client who routinely buys the same legal services still involve harassment, even though the business-use exception lifts the live-contact ban for that client. An exception to paragraph (b) gives a lawyer no immunity from paragraph (c).