Communications Outside the Ban

Communications Outside the Ban

The solicitation ban regulates a mode of delivery, and the mode is live contact: a lawyer “shall not solicit professional employment by live person-to-person contact” when pecuniary gain is a significant motive.¹ A lawyer who wants to reach a particular person therefore has other roads, among them a letter, a recording, and an email. The ban leaves those roads open even when the message names the recipient and the lawyer knows what trouble the recipient is in. Such a message can still be a solicitation, because the definition turns on who initiates the communication, whom it targets, and what it offers, not on the medium. What takes the message outside the ban is that the contact is not live.

The line falls at live contact because the live encounter is what the Court feared. In Ohralik, the Court sustained a lawyer's suspension and said that a State may proscribe in-person solicitation for pecuniary gain “under circumstances likely to result in adverse consequences,” without a showing of actual harm and with some leeway for prophylactic rules.² Those consequences come from pressure. Unlike a public advertisement, which “simply provides information and leaves the recipient free to act upon it or not,” in-person solicitation “may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection.”³ The facts of Ohralik show that pressure at work. Wanda's mother tried to repudiate her daughter's oral assent the next day, and the lawyer insisted that a binding agreement existed; a month later Wanda confirmed in writing that she wanted neither to sue nor to be represented by him.⁴

The ban is narrow in two independent ways. It reaches only contact motivated by pecuniary gain: in Primus, decided the same day as Ohralik, the Court held that solicitation is protected by the First Amendment when the lawyer offers to represent a client without charge, and it protected the speech of an ACLU-affiliated lawyer who had been disciplined for offering free representation to women told they must be sterilized to keep receiving public medical assistance.⁵ It also reaches only live contact, which is the subject of this unit.

A communication outside the ban remains subject to other rules. A State may regulate attorney advertising that is false or misleading, although restrictions aimed at tacky or undignified advertising, or drawn too broadly, invite First Amendment challenge.⁶ Some States also add restrictions of their own on written solicitation. A student who finds that a contact is not live has therefore answered only the first question, and a complete analysis goes on to ask about the message's content and the jurisdiction's own rules.

Written and Recorded Messages

A letter, a piece of mailed material, or a recorded message is not live, so the ban does not reach it.⁷ The result holds even when the lawyer addresses the message to a particular person the lawyer knows to have a particular legal problem. The Court's reasons come from two decisions, Zauderer and Shapero, and a third decision marks the limit.

The analysis begins with Zauderer, where a lawyer faced discipline for an advertisement about the Dalkon Shield. The advertisement promised no success and claimed no special expertise beyond the lawyer's work in similar litigation. It reported that the Dalkon Shield had spawned an impressive number of lawsuits, said the lawyer was handling such suits and would represent other women with similar claims, and advised women not to assume their claims were time-barred.⁸ The Court held that the interests behind the ban upheld in Ohralik could not justify the discipline. Print advertising may convey information more or less effectively, but it ordinarily lacks “the coercive force of the personal presence of a trained advocate,” and a printed advertisement, unlike a personal encounter initiated by an attorney, is not likely to involve pressure for an immediate yes-or-no answer.⁹ The reader keeps control of the timing and the decision, so print is more conducive to reflection and choice than personal solicitation.¹⁰

Shapero then put the targeted letter to the test. The Court granted certiorari to decide whether a State's blanket prohibition was consistent with the First Amendment, and it reversed.¹¹ A State, the Court held, may not categorically prohibit truthful, nondeceptive targeted mail.¹²

Targeting was not the dividing line. A person in legal trouble is as overwhelmed, with the same “impaired capacity for good judgment,” whether a lawyer mails a targeted letter or the person meets an untargeted letter or a newspaper advertisement, both of which are concededly protected.¹³ The relevant inquiry is whether the mode of communication poses a serious danger that lawyers will exploit that susceptibility.¹⁴ Privacy adds no separate objection. A targeted letter invades the recipient's privacy no more than a substantively identical letter mailed at large, since any invasion occurs when the lawyer discovers the recipient's legal affairs and not when the lawyer confronts the recipient with the discovery.¹⁵

Mode decided the case. The suggestion that it was merely “Ohralik in writing” missed the mark, because in assessing the potential for overreaching and undue influence “the mode of communication makes all the difference.”¹⁶ Like print advertising, targeted direct mail “poses much less risk of overreaching or undue influence” than in-person solicitation. Neither written mode involves “the coercive force of the personal presence of a trained advocate” or “pressure on the potential client for an immediate yes-or-no answer.”¹⁷ A letter cannot do what the lawyer in Ohralik did when he insisted on a binding agreement after the mother had repudiated her daughter's assent.¹⁸

The Court did not claim that a letter cannot mislead. A personalized letter may lead the recipient to overestimate the lawyer's familiarity with the case or suggest that the legal problem is more dire than it is, and an inaccurately targeted letter may persuade the recipient that she has a legal problem she lacks or even offer erroneous legal advice.¹⁹ Those dangers call for regulation of false and misleading content, which a State may undertake, and not for prohibition of the mode.²⁰ The same reasoning answers the objection that a letter may use large type and speculation. A truthful and nondeceptive letter, no matter how big its type and how much it speculates, can never “shout at the recipient” or “grasp him by the lapels” as a lawyer can face to face, and a State may claim no substantial interest in confining truthful solicitations to those least likely to be read.²¹

The Court has since grouped Zauderer and Shapero among the decisions that invalidate restrictions on solicitation and advertising where the acute risks of in-person legal solicitation are absent. The same group includes Edenfield, which struck a restriction on in-person solicitation by accountants because it “poses none of the same dangers” identified in Ohralik.²² The pattern shows that the Court tests the danger and not the label.

An exam stem that describes a letter naming the recipient and reciting the details of the recipient's accident invites the instinct that anything this personal must be live contact. The instinct misreads the rule. Personalization raises a question about misleading content, and the letter remains a written message the recipient can set aside. A recorded message works the same way, because the recipient plays it on the recipient's own schedule.

Written solicitation remains open to some regulation, and Florida Bar v. Went For It, Inc. marks where the limit falls. The Court there upheld a thirty-day ban on targeted direct mail aimed at the days after an accident.²³ The Bar's purpose was to forestall the outrage and irritation with the state-licensed legal profession that direct solicitation only days after accidents had engendered. The Bar was concerned not with citizens' “offense” in the abstract but with the demonstrable detrimental effects that such offense has on the profession it regulates.²⁴ The Court distinguished that harm from one a reader can escape, because the harm the Bar targeted “cannot be eliminated by a brief journey to the trash can.”²⁵

The decision rests on that specific interest and that specific window of time. It does not license a categorical prohibition of truthful, nondeceptive targeted mail, which Shapero forbids.

State rules can also define solicitation more broadly than the Model Rule's live-contact line. Florida's rule, for example, defines “solicit” to include contact in person, by telephone, telegraph, or facsimile, or by other communication directed to a specific recipient, and the definition expressly covers written communications and email directed to a specific recipient that do not meet the rule's own requirements.²⁶ A State's definition can thus sweep targeted writings into the regulated category unless they satisfy conditions the State sets. The Model Rule's live-contact line is the starting point for analysis, and the text a jurisdiction has actually adopted controls the answer.

Electronic Messages and Real Time

The ban follows the structure of an exchange and ignores the technology that carries it, so real-time electronic contact falls inside the ban and email ordinarily falls outside. Commentary presumes that real-time electronic communication includes text dialogue through social media, such as instant messaging, internet chat rooms, and real-time internet video, when the lawyer uses it to encourage the targeted person to engage the lawyer's services.²⁸ Each channel lets lawyer and target exchange messages as they happen, so the contact works like a telephone call conducted on a screen.

These channels land on the banned side because they rebuild the pressure that justified the ban. A person in an open chat window or video session faces the demand that Ohralik described, an immediate response without an opportunity for comparison or reflection.²⁹ The lawyer is present on the other end, and ending the exchange means refusing someone who is waiting. The Court has observed that the target of a solicitation may have difficulty avoiding being importuned and distressed even when the lawyer seeking employment is entirely well meaning.³⁰

Email sits on the other side for the opposite reason. A recipient reads an email when ready and answers it days later or never, and no lawyer waits for the reply. Email therefore would not ordinarily be regarded as real-time electronic communication, and commentary treats it as a form of direct mail.³¹ The reasoning about written solicitation carries over by analogy: in assessing the potential for overreaching, “the mode of communication makes all the difference.”³²

The word ordinarily marks the usual treatment of email and leaves room for an exchange that in fact operates as a live conversation. A social media account, an instant-messaging program, and a video link can each carry a message that waits to be read or a conversation that unfolds line by line, so an exam stem that says only “electronic” has not yet said which one it describes. A message the recipient can ignore or answer later, without confronting a waiting lawyer, sits on the written side. A back-and-forth the target must keep up with sits on the live side.

The question for any internet contact is whether the target had to answer while the lawyer waited. Two scenes show how the answer turns on that fact.

A message on the written side of the line is not thereby free of regulation. The rules on false or misleading communications still reach its content, and a State may add limits of its own.³³ Students tend to err in one of two opposite directions here: some treat anything that appears on a screen as real-time electronic contact, and others treat email as exempt from every rule. The working test avoids both errors, because it asks whether the target can ignore the message or delay a response without confrontation.