Concept

Applying the Test

Is the contact prohibited solicitation under Rule 7.3(b)?

Applying the Test

Rule 7.3 works as its own checklist. Its ban 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," and each phrase of that sentence names a fact the problem must supply.¹ The earlier sections taught the conditions one at a time. A fact pattern delivers them together, wrapped in details that sound alarming and decide nothing.

The conditions are cumulative. A contact that fails any one of them lies outside the ban, and a contact that meets two of the three earns no partial penalty. The method follows from that: ask who started the exchange, how it was carried out, and why, in that order, and stop at the first negative answer.

Exam Analysis Steps

Work through the steps in order. A negative answer at step one, two, or three ends the inquiry into the ban, because a carve-out or an exception matters only to a contact that would otherwise violate it.

Ask whether the lawyer, or someone acting for the lawyer or firm, initiated an offer of legal services to a specific person the lawyer knows or should know needs help in a particular matter. If no one did, as when the prospective client made the first move, the contact is not a solicitation.
Ask whether the contact was live person-to-person: face to face, by live telephone, or by real-time electronic exchange. If the target could read, hear, or answer on the target's own time, as with a letter or an ordinary email, the contact is outside the ban.
Ask whether the lawyer's or firm's pecuniary gain was a significant motive. If the offer is free and made to advance political or ideological goals, with no fee in prospect, the ban does not apply.
If all three conditions are present, ask whether a carve-out covers the contact: a communication authorized by law or ordered by a court or other tribunal, or live enrollment in a group or prepaid legal service plan. Either removes it from the ban.
If no carve-out applies, ask whether the person contacted falls within one of the rule's listed exceptions, which include another lawyer and a person with whom the lawyer has a family, close personal, or prior professional relationship.
Whatever the result, ask whether another rule still reaches the contact: the rules on false or misleading communications, or the rule's further bars on solicitation.

The first three steps decide whether the ban applies at all. Step five draws on the rule's list of excepted persons, which the secondary literature describes as another lawyer and those with whom the lawyer "has a family, close personal, or prior professional relationship."² This reading does not develop that step further. Step six stands apart from the rest, because it applies whether the contact came out inside or outside the ban.

Hypothetical Illustration

A news report names a warehouse worker badly hurt when a forklift tipped over. A personal-injury lawyer reads it and sees that the worker's family probably has a claim against the employer. The lawyer has no connection to the family and wants the fee a successful case would bring. Five contacts with the family are possible, and they differ in who makes the first move, in how the contact is delivered, or in the lawyer's motive.

The lawyer telephones the worker's spouse that evening, says the case is worth pursuing, and urges the spouse to sign a contingent-fee agreement before speaking to anyone else.
The lawyer mails the family a truthful letter, addressed by name and reciting the details of the accident, that offers to take the case and invites them to call if interested.
The spouse has posted publicly about the accident, and the lawyer opens a live text chat with the spouse and presses, message by message, for a decision to hire the firm.
A staff lawyer for a nonprofit workers'-rights organization, with no stake in any fee, meets the family in person and offers free representation to challenge the employer's safety practices as part of the organization's campaign.
The spouse sees the lawyer's billboard, telephones the lawyer to ask about fees, and the lawyer answers.

The telephone call is the clean violation. The lawyer started the exchange, aimed it at a specific person known from the report to need help in a particular matter, and offered to provide that help, so the call is a solicitation. A live telephone call is live contact, and the contingent fee supplies a significant pecuniary motive. The facts invoke no court order, plan, or listed relationship, so the call sits inside the ban. The spouse need not show any pressure or injury. The Court upheld general prohibitions on personal solicitation as prophylactic measures, in part because there is often no witness other than the lawyer and the person solicited, which makes reliable proof of what happened difficult or impossible to obtain.³

The letter carries the same offer to the same person and falls outside the ban because it fails one condition. It satisfies the first, since solicitation turns on who initiated the message, whom it targets, and what it offers, and the medium is no part of that definition. It fails the second. The spouse can read the letter at leisure, compare other lawyers, show it to a relative, or throw it away, and no lawyer waits on the line for an answer. The rules liberally permit advertising and direct mail, even mail aimed at people facing a situation that gives rise to a specific need for legal services.⁴ The letter's content stays regulated, since a state may regulate attorney advertising that is false or misleading.⁵ Naming the family and reciting the accident makes the letter personal. It does not make the letter live.

The chat tests the second condition against a screen. The lawyer initiated the contact, aimed it at a specific person known to need help, and had a fee in mind. What remains is whether the exchange is live, and it is, because it runs in real time, each message answered as it arrives. Email, by contrast, ordinarily is not regarded as real-time electronic communication and is regulated as a form of direct mail.⁶ The same offer sent by email would therefore ordinarily fall outside the ban, while the chat sits inside it, just as the telephone call did. The spouse's public post adds no exception, because the lawyer still initiated the contact. The test asks whether the exchange unfolds in real time, and the device that carries it is secondary.

The nonprofit lawyer's visit is initiated by the lawyer, aimed at a specific family, and conducted in person, so the third condition decides the result. The ban reaches only contact in which "a significant motive" is "the lawyer's or law firm's pecuniary gain," and a lawyer who offers free representation to advance an organization's campaign has no such motive.⁷ The answer reverses if the lawyer's firm expects a fee from the family. The rule asks for a significant motive, not the only one, so a worthy cause does not cancel a financial motive that sits beside it. Even the free offer stays subject to the rule's further bars on solicitation, as step six reminds.

The billboard caller never reaches the second or third condition. The spouse made the first move after seeing a general advertisement, so the lawyer's answers respond to a request and do not amount to an offer the lawyer initiated. The call is live and the lawyer would like the fee, but neither fact converts a conversation the prospective client began into a solicitation. Every advertisement and every office consultation reflects a lawyer's wish for clients, so a fact pattern that stresses the wish has not yet shown the first element.

Side by side, the five contacts show that each condition can carry the answer. Delivery separates the call from the letter, the structure of an electronic exchange separates the chat from the email, the lawyer's motive separates the nonprofit lawyer from the fee-seeking one, and the identity of the person who made the first move separates the billboard caller from the lawyer who dials. A sixth variation reaches the later steps. Had the spouse been the lawyer's sibling, the call would still meet every element of the ban, and the exception for a family relationship would remove it.⁸ For quick sorting, remember that advertising is largely permitted and personal solicitation largely prohibited, and the dividing line is live contact.⁹

A finding that a contact lies outside the ban answers only one question. The rule separately forbids solicitation "even when not otherwise prohibited" by the ban when certain listed circumstances are present.¹⁰ Those circumstances include coercion, duress, or harassment, and a target's expressed wish not to be solicited. The rules on false or misleading communications also continue to govern the content of the letter, the billboard, and any other message that escapes the live-contact ban.¹¹ An answer that stops after finding the contact non-live or non-pecuniary has finished one question, and a complete answer names the rules that remain to be checked.

Applying the Test

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