Rule 4-7.3 Information About Legal Services - Direct Contact with Prospective Clients

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 client known to need legal services. These forms of contact between a lawyer and a prospective client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter. The prospective client, who already may 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] The use of general advertising and written, recorded, or electronic communications to transmit information from lawyer to prospective client, rather than direct in-person, live telephone, or real-time electronic contact, will help to assure that the information flows cleanly as well as freely. The contents of advertisements and communications permitted under Rule 4-7.2 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 4-7.1. The contents of direct in-person, live telephone or real-time electronic conversations between a lawyer and a prospective client can be disputed and may not be 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.

[3] There is far less likelihood that a lawyer would engage in abusive practices against an individual who is a former client, or with whom the lawyer has close personal or family relationship, or in situations in which the lawyer is motivated by considerations other than the lawyer's pecuniary gain. Nor is there a serious potential for abuse when the person contacted is a lawyer. Consequently, the general prohibition in Rule 4-7.3(a) and the requirements of Rule 4-7.3(b) are not applicable in those situations. Also, Rule 4-7.3(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.

[4] But even permitted forms of solicitation can be abused. Thus, any solicitation that contains information that is false or misleading within the meaning of Rule 4-7.1, which involves coercion, duress, or harassment within the meaning of Rule 4-7.3(c)(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 4-7.3(c)(1) is prohibited.

[5] This Rule 4-7.3 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 that 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 that 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 4-7.2.

[6] The requirement in Rule 4-7.3(b)(1) that certain communications be marked "Advertisement" does not apply to communications sent in response to requests of potential clients or their spokespersons or sponsors. 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 4-7.3.

SUPPLEMENTAL MISSOURI COMMENT

Rule 4-7.3(a) is similar to but less restrictive than Iowa Disciplinary Rule DR 2-101(4). The United States Supreme Court in the case of Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978), held that a state could categorically ban all in-person solicitation.

Rule 4-7.3(b)(1) and (b)(2) are from Rule 4-7.3 of the Rhode Island rules of the court. Rule 4-7.3(b)(9), (c)(1), and (c)(2) are from Rhode Island Rule 4-7.3(b)(2)(a), (b), and (c).

Rule 4-7.3(c)(3) is taken in part from suggestions found in Shapero v. Kentucky Bar Assn., 486 U. S. 466 (1988), which condemned written solicitation that unduly emphasized trivial and uninformative facts or that stated that “the liability of the defendants is clear” or that made claims about the quality of legal services.

Rule 4-7.3(c)(4) is taken from South Carolina Appellate Court Rule 4-7.3(b)(3) and is similar to Florida’s 30-day ban on direct mailing of solicitations to personal injury and wrongful death clients. The Florida 30-day moratorium was upheld in Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995). The Supreme Court held that the Florida rule did not violate the lawyer’s first amendment rights because it served a legitimate state interest in protecting the privacy and sensibilities of accident victims and helped preserve the integrity of the bar and the public’s perception of the administration of justice.

Rule 4-7.3(b)(3) to (8) are taken from South Carolina Appellate Court Rule 7.3(c)(2) and (3), except South Carolina Rule 7.3(c)(3)(i) was eliminated.

The requirements of Rule 4-7.3(b) apply to written solicitations disseminated in Missouri.