COMMENT
[1] There is a potential for abuse inherent in direct in-person, live telephone or real-time electronic contact by a lawyer with a prospective non-commercial client known to need legal services. These forms of contact between a lawyer and a prospective client potentially subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter. The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer’s presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and over-reaching.
[2] This potential for abuse inherent in direct in-person, live telephone or real-time electronic solicitation of prospective clients justifies its prohibition under certain circumstances, particularly since lawyer advertising and written and recorded communication permitted under Rule 7.2 offer alternative means of conveying necessary information to those who may be in need of legal services.
[3] The contents of advertisements and communications permitted under Rule 7.2 can be permanently recorded so that they cannot be disputed and may be shared with others who know the lawyer. This potential for informal review is itself likely to help guard against statements and claims that might constitute false and misleading communications, in violation of Rule 7.1.
[4] Paragraph (a) is not intended to prohibit a lawyer from participating in constitutionally protected activities of public or charitable legal service organizations or bona fide political, social, civic, fraternal, employee or trade organizations whose purposes include providing or recommending legal services to its members or beneficiaries.
[5] Even permitted forms of solicitation can be abused. Thus, any solicitation which contains information which is false or misleading within the meaning of Rule 7.1, which involves coercion, duress or harassment within the meaning of Rule 7.3(b)(2), or which involves contact with a prospective client who has made known to the lawyer a desire not to be solicited by the lawyer within the meaning of Rule 7.3(b)(1) is prohibited. Moreover, if after sending a letter or other communication to a client as permitted by Rule 7.2 the lawyer receives no response, any further effort to communicate with the prospective client may violate the provisions of Rule 7.3(b).
[6] This Rule is not intended to prohibit a lawyer from contacting representatives of organizations or groups that may be interested in establishing a group or prepaid legal plan for their members, insureds, beneficiaries or other third parties for the purpose of informing such entities of the availability of and details concerning the plan or arrangement which the lawyer or lawyer’s firm is willing to offer. This form of communication is not directed to a prospective client. Rather, it is usually addressed to an individual acting in a fiduciary capacity seeking a supplier of legal services for others who may, if they choose, become prospective clients of the lawyer. Under these circumstances, the activity which the lawyer undertakes in communicating with such representatives and the type of information transmitted to the individual are functionally similar to and serve the same purpose as advertising permitted under Rule 7.2.
[7] General announcements by lawyers, including changes in personnel or office location, do not constitute communications soliciting professional employment from a client known to be in need of legal services within the meaning of this Rule.
[8] Paragraph (d) of this Rule permits a lawyer to participate with an organization which uses personal contact to solicit members for its group or prepaid legal service plan, provided that the personal contact is not undertaken by any lawyer who would be a provider of legal services through the plan. The organization must not be owned by or directed (whether as manager or otherwise) by any lawyer or law firm that participates in the plan. For example, paragraph (d) would not permit a lawyer to create an organization controlled directly or indirectly by the lawyer and use the organization for the in-person or telephone solicitation of legal employment of the lawyer through memberships in the plan or otherwise. The communication permitted by these organizations also must not be directed to a person known to need legal services in a particular matter, but is to be designed to inform potential plan members generally of another means of affordable legal services. Lawyers who participate in a legal service plan must reasonably assure that the plan sponsors are in compliance with Rules 7.1, 7.2 and 7.3(b). See 8.4(a).
[9] There are several court connected legal assistance programs sponsored by legal aid organizations, bar associations, and others that, with prior approval of a judge or the Administrative Office of the Courts, provide advice to unrepresented individuals at court proceedings. These programs are important to support access to justice for traditionally underrepresented individuals and groups who may not be aware of these assistance programs. Subparagraph (e) clarifies that attorneys participating in these programs may announce their availability to provide assistance before the start of and during court proceedings.
REPORTER’S NOTES:
Model Rule 7.3 (2002), describing the circumstances under which a lawyer may solicit clients, covers many of the issues addressed by M. Bar R. 3.9(f)(1). The Model Rule’s original formulation, however, categorically prohibits “in-person, live telephone or real-time electronic contact” with prospective clients. The Task Force discussed the concerns underlying this categorical prohibition: lawyer overreaching or harassing vulnerable prospective clients through direct solicitations. The Task Force ultimately concluded that such concerns were adequately addressed by limiting solicitation to circumstances in which a lawyer could overreach or harass non-commercial clients. Non-commercial prospective clients are those individual clients in need of legal services in non-commercial or personal matters or circumstances.
Model Rule 7.3(c) (2002) requires that all advertising material contain the explicit indication that it is “Advertising Material.” The purpose of this requirement is to prevent deceptive solicitations. The Task Force believed that the prospective client harassment, deception and lawyer overreaching concerns are amply addressed by the dictates set forth in Model Rules 7.1 and 7.2 (2002). As such, the Task Force concluded, such categorical prohibitions and mandates are unnecessary.
Read in concert with proposed Maine Rules of Professional Conduct 7.1 and 7.2 and the “Aspirational Goals for Lawyer Advertising Content” (now found in proposed Maine Rule of Professional Conduct 7.2-A), the revised structure and content of Rule 7.3 reflects time tested and accepted professional lawyer advertising and solicitation practices in Maine. Subsection (e), added after full Task Force activity had concluded, clarifies that solicitation of potential clients within a courthouse legal assistance program, is permissible, subject to the limits of subsections (a) and (b). Accordingly, the Task Force recommended its adoption as modified.
