How the Exceptions Work

Exceptions to the Solicitation Ban

The three exceptions are not a separate list of permissions. They are the last clause of the prohibition itself. Rule 7.3 of the Model Rules of Professional Conduct says that a lawyer “shall not 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 is with a” person in one of three listed categories.¹ Because the exceptions sit inside the rule, a lawyer reaches them only after the rule’s own conditions have been established. A contact that never met those conditions needs no exception to be proper. Every later section in this chapter takes one category at a time and assumes this order.

Three conditions come first. The contact must be a solicitation, which the rules define as 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.² A general advertisement fails that definition because it is aimed at no one in particular. A conversation the prospective client starts fails it because the lawyer did not initiate it.

The contact must also be live. The rule reaches in-person contact, live telephone calls, and real-time electronic communication, which presumably includes text dialogue through instant messaging, internet chat rooms, and real-time internet video when the lawyer uses it to encourage the target to engage his or her services. A recorded telephone message is not a live call.³ Email ordinarily is not real-time electronic communication, because it is typically regulated as a form of direct mail under Rule 7.3(c).⁴

Finally, pecuniary gain must be a significant motive for the contact. It need not be the only motive, but it must be a real part of why the lawyer reaches out.

Exam Analysis Steps

Because the exceptions come last in the logic, the safest way to apply the rule is to establish each condition of the prohibition in order and to look at the target’s category only at the end. The steps are these:

Decide whether the communication is a solicitation: the lawyer or someone acting for the lawyer initiated it, aimed it at a specific person who needs legal services in a particular matter, and offered those services.
Decide whether the contact was live (in person, by live telephone, or by real-time electronic exchange) rather than a written or recorded message governed elsewhere.
Decide whether the lawyer’s or firm’s pecuniary gain was a significant motive for the contact. If it was not, stop, because the prohibition does not apply.
Only if the first three answers are yes, ask whether the person contacted is a lawyer, has a family, close personal, or prior business or professional relationship with the lawyer or firm, or routinely uses for business purposes the type of legal services offered.

The third step is where some contacts leave the analysis altogether. The prohibition applies only when pecuniary gain is a significant motive, so contact that lacks that motive never triggers it, and no exception has to rescue the contact.⁵ The usual illustration is a lawyer who approaches people on behalf of a nonprofit public-interest organization, as in re Primus, rather than for a fee.

When all three conditions are met, the rule works as a flat bar and does not weigh the circumstances of each encounter. The reason lies in the encounter itself. In Ohralik v. Ohio State Bar Association, the Supreme Court explained that, “[u]nlike 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.”⁶ The setting also defeats enforcement after the fact. “[O]ften there is no witness other than the lawyer and the lay person whom he has solicited, rendering it difficult or impossible to obtain reliable proof of what actually took place.” To let states prevent these harms before they occur, the Court upheld general prohibitions on personal solicitation by lawyers as “prophylactic measures,” rules that bar a whole category of conduct in advance rather than waiting to prove what happened in a particular private conversation.⁷

The exceptions follow from the same concern. A rule aimed at pressure and unreflective decisions has little work to do where that pressure is unlikely, and the Court’s own footnote shows the idea at work: allowing a lawyer to accept employment after giving unsolicited advice to a close friend, relative, or former client recognizes an exception for activity that is not likely to present these problems.⁸ Each listed category picks out a kind of target for whom those dangers are meant to shrink.⁹ The following sections ask, category by category, why that is so.

Because the exceptions turn on the target’s identity and history, a lawyer’s manner does not matter. A courteous, accurate pitch to an accident victim the lawyer has never met stays inside the ban, because the victim fits no category. A blunt pitch to another lawyer falls within an exception, because the target is a lawyer. The three categories are another lawyer; a person who has a family, close personal, or prior business or professional relationship with the lawyer or law firm; and a person who routinely uses for business purposes the type of legal services the lawyer offers.¹⁰ Fitting a category takes the contact out of this prohibition, and the chapter’s later section on Rule 7.3(c) considers what remains.

Exceptions to the Solicitation Ban

How the Exceptions Work

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