Elements of the Ban

Elements of the Ban

Rule 7.3(b) forbids a lawyer to solicit professional employment “by live person-to-person contact when a significant motive for the lawyer's doing so is the lawyer's or law firm's pecuniary gain,” unless the contact falls within a listed exception.¹ That one sentence holds three conditions. The lawyer must solicit. The solicitation must be live and person-to-person. And the lawyer's or firm's pecuniary gain must be a significant motive. The ban applies only when all three are present, so a lawyer who speaks live to a stranger with a fee in mind has not violated this rule unless the speech is a solicitation, and a solicitation delivered by letter escapes it however much the lawyer wants the fee.

Where the ban applies, it is nearly absolute, in contrast with the liberalized rules on advertising.² Most of the work in a problem therefore lies in deciding whether the ban applies at all. Each condition isolates a different danger that the Court identified in Ohralik. The first asks whether the lawyer reached out to someone to seek employment; the second asks how; the third asks why. The how matters because a live exchange can press for an immediate answer and leave no opportunity for comparison or reflection.³ The why matters because a lawyer who solicits for pay may be inclined to subordinate the client's interests to his own.⁴ Test the conditions in that order. If the lawyer approached no one, the inquiry ends before mode or motive needs attention.

Solicitation Defined

The first condition depends on a defined term, and Rule 7.3(a) supplies the definition. A solicitation is 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, that offers to provide legal services for that matter or reasonably can be understood as offering to do so.⁵ Each part screens out a kind of lawyer speech, and together the parts describe one situation: the lawyer reaches out to a particular person known to have a problem and offers to solve it. That is narrower than seeking business in general.

The narrowness follows from where the danger lies. A public advertisement “simply provides information and leaves the recipient free to act upon it or not.” In-person solicitation, by contrast, may exert pressure and often demands an immediate response, with no chance for comparison or reflection and no opportunity for agencies of the bar or persons close to the solicited individual to intervene.⁶ The person approached may also have difficulty avoiding the approach, even when the lawyer is entirely well meaning.⁷ Each part of the definition marks a point at which the target has lost control. The lawyer chooses the moment, the lawyer chooses the person, the lawyer knows the person is in need, and the lawyer puts a specific service on the table. When any one of those features is missing, the rule's concern is largely absent.

The first step asks who started the communication, and the reference to communications made “on behalf of” a lawyer closes the obvious loophole. A lawyer who sends a runner to a hospital or has an assistant telephone an accident victim has initiated the contact through an agent, and the target faces the same unrequested approach whoever delivers it. The Court in Ohralik noted that solicitation by a lawyer's agents or runners would present similar problems to solicitation by the lawyer in person.⁸ If the rule stopped at the lawyer's own voice, delegation would let the lawyer collect fees from clients the lawyer may not approach, so the definition attributes the agent's contact to the lawyer.

The same first step explains why a communication that begins with the prospective client falls outside the definition. A solicitation is a communication initiated by or on behalf of the lawyer, so when the prospective client makes the first move, the lawyer's reply answers a request and starts nothing.⁹

In neither scene did the lawyer begin the exchange. The audience member turned a public lecture into a private request, and the caller answered a general advertisement, so the lawyer's words respond to a request and create none. A billboard, a newspaper advertisement, or a talk to a group also fails the second step, because it is addressed to no one in particular. The rules on that kind of public communication aim at what is false or misleading, and restrictions aimed at tackiness or drawn too broadly invite First Amendment challenge.¹⁰ The result changes if the lawyer singles out a listener known to have a problem and offers to take the case. That offer is then the lawyer's own initiative, directed to a specific person.

The third and fourth steps keep the definition tied to a particular person with a particular problem. The knowledge requirement is partly objective, since it reaches a lawyer who knows or reasonably should know of the need, so a lawyer cannot escape by declining to read the accident report or the foreclosure notice that makes the need plain. The matter must also be particular: a lecture on how wills work addresses a topic, whereas a call to a named person about that person's own estate dispute addresses a matter. Finally, the offer need not be phrased as an invitation to hire. Because the definition reaches a message that reasonably can be understood as offering legal services for the matter, a contact that describes the lawyer's availability to handle the person's problem qualifies even if the words “hire me” are never spoken.¹¹

A communication that satisfies all four steps is a solicitation, and that settles only the first of the three conditions. The definition says nothing about the medium of delivery, so a targeted letter can meet it just as a telephone call can. The ban attaches only when the contact is also live and driven by a significant pecuniary motive, which the next two sections take up. The usual exam error is to label conduct a solicitation because the lawyer wanted clients. The test is whether the lawyer, or an agent, initiated an offer directed to a specific person known to need help in a particular matter.

Live Person-to-Person Contact

The second condition concerns how the lawyer delivers the offer. Rule 7.3(b) reaches only solicitation made by “live person-to-person contact,” so the ban follows the channel of delivery and leaves every other channel to the rules on advertising.¹³ Three channels fall inside the phrase: a face-to-face meeting, a live telephone call (as opposed to a recorded telephone message), and a real-time electronic exchange.¹⁴ What the three share is a direct back-and-forth in which the target must respond as the conversation moves. The commentary to Rule 7.3 calls this “the private importuning of the trained advocate in a direct interpersonal encounter,” a “situation . . . fraught with the possibility of undue influence, intimidation and over-reaching.”¹⁵ The question of mode arises only after the contact has been found to be a solicitation, so a conversation the prospective client began never reaches this element.

Ohralik supplies the reasons the line falls at live contact. Each of three features is missing from a printed message:

• The target cannot easily get away. A reader can look away from an advertisement, while a person approached directly may have difficulty avoiding the lawyer even when the lawyer is entirely well meaning.¹⁶
• The target is pressed to decide at once. In-person solicitation “may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection.”¹⁷
• The exchange leaves no reliable record. It is not visible or open to public scrutiny, and often no one but the lawyer and the person solicited witnessed it.¹⁸

Each feature does separate work. The first two make the target's consent less reliable, because a person who must answer while the lawyer waits has no chance to compare offers or hear from persons close to the solicited individual. The Court later drew the same contrast when it said that print advertising lacks “the coercive force of the personal presence of a trained advocate” and is not likely to pressure the reader for an immediate yes-or-no answer.¹⁹ The third feature explains why the rule regulates the whole category. If no one but the lawyer and the target heard what was said, a requirement of proof of overreaching would leave the State with almost nothing to prove, and in-person solicitation would be virtually immune to effective oversight.²⁰ The State may therefore proscribe in-person solicitation for pecuniary gain without a showing of actual harm.²¹

The case of a personalized letter shows how the mode element works. In Shapero v. Kentucky Bar Association, the Court acknowledged that a letter personalized to the recipient presents an increased risk of deception. It could lead the recipient to overestimate the lawyer's familiarity with the case, or suggest that the recipient's legal problem is more dire than it is.²² That risk concerns misleading content, which the rules on false or misleading communication address.²³ It does not make the letter live. A printed message, unlike a personal encounter initiated by an attorney, is not likely to pressure the reader for an immediate answer, and it is more conducive to reflection and the exercise of choice.²⁴ The frequent exam error is to treat a letter that names the recipient and recites the details of the recipient's accident as live contact because it feels personal. Personalization changes the risk of deception, and the mode remains written.

Real-time electronic contact is the modern extension of the telephone call. It presumably includes text dialogue through instant messaging and internet chat rooms, and real-time internet video, when the lawyer uses it to encourage the targeted person to engage the lawyer's services.²⁵ A lawyer who opens a chat or video session with a person who posted about an injury and presses that person, message by message, to hire the lawyer has rebuilt the phone call on a screen. Email works differently. It would not ordinarily be regarded as real-time electronic communication, because it typically is regulated as a form of direct mail.²⁶ The test asks whether the exchange is a live back-and-forth that the target must answer in the moment, and the presence of a screen or keyboard decides nothing. A later unit takes up written, recorded, and electronic messages in detail.

Live contact is necessary to the ban but does not complete it. A telephone call to a person who asked for the lawyer's help falls outside the definition of solicitation, and a live approach with no significant pecuniary motive falls outside the condition taught next.

Significant Pecuniary Motive

The third condition asks why the lawyer made the live approach. The ban applies only “when a significant motive for the lawyer's doing so is the lawyer's or law firm's pecuniary gain,” and pecuniary simply means relating to money.²⁸ Two words in that phrase do the work. The gain must be the lawyer's or the firm's own, meaning fees or other income from the engagement, and the motive must be significant. That is a lower threshold than being the only motive or even the leading one. A lawyer who sincerely cares about a prospective client's plight but also expects a fee that matters to the practice has a significant pecuniary motive, because the text asks whether gain is a meaningful part of the reason for the contact and does not require it to be the whole reason.

The element rests on two reasons that point in different directions. The first explains why a profit motive calls for a ban. A lawyer who solicits for pay may be inclined to subordinate the client's best interests to his own pecuniary interests. Even unintentionally, his ability to evaluate the client's claims may falter when the conclusion will affect his income, so that a valid claim is settled too quickly or a weak one is pursued past the point of reason.²⁹ The second reason explains why the absence of profit takes a contact out of the ban. A lawyer's procurement of remunerative employment is “only marginally affected with First Amendment concerns” and falls within the State's proper sphere of economic and professional regulation.³⁰ When the contact is political expression and association, however, a State must regulate with significantly greater precision.³¹ Because the prohibition on personal solicitation is otherwise nearly absolute, the pecuniary-gain qualifier carries the weight of keeping the ban within the commercial setting in which the Court sustained it.³²

The Court drew the line in two decisions announced the same day. In re Primus, a lawyer affiliated with the American Civil Liberties Union in South Carolina offered free representation to women whom the welfare department had told they must be sterilized to continue receiving public medical assistance.³³ A disciplinary panel found that she had solicited one of them, Williams, after giving unsolicited legal advice, to join a prospective class action for damages and other relief to be brought by the ACLU, and it noted that the ACLU would benefit financially if a suit for money damages succeeded.³⁴ The Supreme Court held that applying the state's solicitation rules to her letter on the ACLU's behalf violated the First and Fourteenth Amendments.³⁵ It reasoned that the ACLU litigates as a vehicle for political expression and association, so punishing the offer of free representation “must withstand the exacting scrutiny applicable to limitations on core First Amendment rights.”³⁶

Set beside Ohralik, Primus isolates the variable that matters. Each lawyer approached, on his or her own initiative, a woman or women with a particular legal problem and offered to handle it. Ohralik sought remunerative employment, and the Court observed that he could not contend his approaches involved political expression or an exercise of associational freedom.³⁷ The Primus lawyer offered representation without charge to advance the ACLU's goals, and the Court distinguished Ohralik on exactly that ground: she was not seeking to profit directly from the client. That raised the value of the speech as political activity and lowered the likelihood of deceptive practices.³⁸ The variable that separates the two cases is therefore the lawyer's pecuniary motive, together with the associational purpose that took its place. The variable also changes what the bar must prove. Ohralik allows the State to proscribe in-person solicitation for pecuniary gain without a showing of actual harm,³⁹ whereas a lawyer who solicits as a form of protected political association generally may not be disciplined without proof of actual wrongdoing that the State constitutionally may proscribe.⁴⁰ The motive element thus controls whether the categorical ban applies at all and, when it does not, what the disciplinary authority must show.

The Primus record contained a fact that might look like pecuniary gain, and the Court set it aside. The Court regarded it as irrelevant that the ACLU lawyer might seek attorney's fees from the state if the plaintiff prevailed.⁴¹ A fee awarded against the opposing party is not collected from the person approached, and the offer to that person remained one of representation without charge. An exam fact pattern that attaches a possible court-awarded fee to a free offer therefore does not, on that fact alone, convert the offer into solicitation for pecuniary gain.

Cause-driven in-person contact has a long pedigree. In NAACP v. Button, a local branch would invite a member of its legal staff to explain to a meeting of parents and children the legal steps necessary to achieve desegregation, and the staff member would bring printed forms to the meeting.⁴² A rule that swept in every in-person solicitation, including contact of that kind, would reach speech the First Amendment protects, and the pecuniary-gain qualifier in Rule 7.3(b) is what keeps the ban on the commercial side of the line.

In the first scene no significant motive of the lawyer or the firm is money, so Rule 7.3(b) does not reach the contact, which is the position of the lawyer in Primus. In the second scene the cause may be entirely sincere, but the contingent fee and the remark about profitability make the firm's gain a significant motive, and the contact falls on the Ohralik side of the line unless an exception applies. The usual exam error is to treat a noble cause or a nonprofit label as the end of the analysis. The question asks about gain, and idealism does not displace a significant financial motive that sits beside it.

The absence of a pecuniary motive removes a contact from Rule 7.3(b) without freeing it from every other rule. The State's special interest in regulating the lawyers it licenses amply justifies narrowly drawn rules that proscribe solicitation that in fact is misleading, overbearing, or involves other features of deception or improper influence.⁴³ A fact pattern with a free offer therefore calls for two checks: whether the motive element takes the contact out of the live-contact ban, and whether pressure on the target or misleading content brings it within some other rule.