Solicitation of Another Lawyer

Solicitation of Another Lawyer

Rule 7.3(a) forbids a lawyer to solicit professional employment by in-person, live telephone, or real-time electronic contact when a significant motive is the lawyer's pecuniary gain.¹ Paragraph (b)(1) lifts that ban when the person contacted is a lawyer, and the single word "lawyer" is the whole provision.² The analysis therefore reduces to one factual question: is the target a lawyer? The text asks nothing about how experienced the target is, what field the target practices in, or whether the soliciting lawyer was invited to call. A lawyer-initiated, live, fee-motivated offer can satisfy every element of the ban, and the exception still takes the contact out of it.

The exception follows from what the ban is meant to prevent. In Ohralik v. Ohio State Bar Association, the Supreme Court explained that a public advertisement simply provides information and leaves the recipient free to act on it or not, while in-person solicitation may exert pressure and often demands an immediate response, with no chance for comparison or reflection.³ Those dangers fall hardest on lay people who do not know how legal services are bought. A lawyer who receives the offer is differently placed, because familiarity with legal practice greatly reduces the risk of being misled or improperly influenced in choosing counsel.⁴ Such a target knows how fee arrangements work, can check a firm's record, and can ask for time or decline without a stranger's disadvantage. With little left to protect, the ban's purpose has little left to do.

Because the exception rests on a judgment that the risk is smaller, jurisdictions disagree about it. More than a third of the states include no exception from the direct-contact rule for communications to other lawyers.⁵ One state's version, quoted in a state supreme court opinion, frames the ban around a prospective client "with whom the lawyer has no family or prior professional relationship" and routes its exceptions through a separate subdivision.⁶ The variation is unsurprising. Regulation of lawyer marketing is a tug-of-war between First Amendment protection for attorney advertising as commercial speech, recognized since Bates, and regulators' wish to keep a tight leash on it.⁷ The Model Rule is therefore a baseline, and a lawyer must read the jurisdiction's own exceptions before assuming that a call to another lawyer is safe.

The exception measures professional status, and general sophistication does not stand in for it. The reduced risk comes from familiarity with how lawyers are chosen, retained, and compared, and expertise in another demanding field teaches none of that. A bright-line status test also suits a rule that exists so that no one has to reconstruct afterward how much the target understood during a private conversation.

Change the target and the result changes. A partner who telephones a manufacturer's general counsel to pitch the firm as outside counsel in a pending product-liability suit is contacting a lawyer, so the call stays within paragraph (b)(1) however large the fees at stake. A physician or an accountant stands where the nurse stands, because neither holds the status the exception names. A sophisticated nonlawyer business is not left without a path, but the path is a different exception. The business must be a person who routinely uses for business purposes the type of legal services the lawyer offers, a separate inquiry taken up in a later section.⁸