There is a potential for abuse inherent in direct contact by a lawyer with a person known to need
legal services. These forms of contact subject a person to the private importuning of the trained
advocate in a direct interpersonal encounter. A person, who may already feel overwhelmed by
the circumstances giving rise to the need for legal services, may find it difficult to evaluate fully
all available alternatives with reasoned judgment and appropriate self-interest in the face of a
lawyer’s presence and insistence upon being retained immediately. The situation is fraught with
the possibility of undue influence, intimidation, and overreaching.
However, the United States Supreme Court has modified the traditional ban on written
solicitation. Shapero v Kentucky Bar Ass’n, 486 US 466; 108 S Ct 1916; 100 L Ed 2d 475
(1988). Paragraph (a) of this rule is therefore modified to the extent required by the Shapero
decision.
The potential for abuse inherent in direct solicitation justifies its partial prohibition, particularly
since lawyer advertising and the communication permitted under these rules are alternative
means of communicating necessary information to those who may be in need of legal services.
Advertising and permissible communication make it possible for a person to be informed about
the need for legal services, and about the qualifications of available lawyers and law firms,
without subjecting a person to impermissible persuasion that may overwhelm a person’s
judgment.
The use of general advertising and communications permitted under Shapero, rather than
impermissible direct contact, will help to assure that the information flows cleanly as well as
freely. Advertising is out in public view, thus subject to scrutiny by those who know the lawyer.
The contents of advertisements and communications permitted under Rule 7.2 are 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 or misleading communications, in violation of Rule 7.1. The contents of
some impermissible direct conversations can be disputed and are not subject to third-party
scrutiny. Consequently they are much more likely to approach (and occasionally cross) the
dividing line between accurate representations and those that are false and misleading.
There is far less likelihood that a lawyer would engage in abusive practices against an individual
with whom the lawyer has a prior family or professional relationship or where the lawyer is
motivated by considerations other than the lawyer’s pecuniary gain. Consequently, the general
prohibition in Rule 7.3(a) is not applicable in those situations.
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 its members,
insureds, beneficiaries, or other third parties for the purpose of informing such entities of the
availability of, and detail concerning, the plan or arrangement that the lawyer or the lawyer’s
firm is willing to offer. This form of communication is not directed to a specific person known
to need legal services related to a particular matter. 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 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 these rules.
