Relationship With the Lawyer or Firm

The second exception to the solicitation ban turns on a connection between the target and the soliciting lawyer. Live contact is permitted with a “person who has a family, close personal, or prior business or professional relationship with the lawyer or law firm.”¹ The exception before it asks only whether the target is a lawyer, and the one after it asks whether the target routinely uses the type of legal services offered for business purposes. This is the first exception to ask who the soliciting lawyer is to the person contacted.² The text names four ties in two groups, personal (family and close personal) and professional (prior business and prior professional), and contact with a target who fits either group falls outside the ban.

Rule 7.3 otherwise bars live solicitation when a significant motive is the lawyer’s pecuniary gain.³ The bar belongs to a larger tug-of-war between state regulators, who want a tight leash on attorney marketing, and the First Amendment protection that commercial speech has received since Bates v. Arizona State Bar.⁴

A relationship eases the rule because the ban is aimed at the stranger. A stranger cannot tell whether the person at the door is trustworthy, competent, or merely eager for a fee, and has no history against which to weigh the pitch. A person who already has a tie to the lawyer or firm starts from a different place: that person knows who is calling, has a basis for judging the lawyer’s reliability, and may already have meant to call that lawyer. The surprise and pressure that justify a prophylactic rule shrink, so the rule can permit a conversation that it would forbid if the lawyer were unknown.

The same reasoning fixes the line. The text requires a relationship “with the lawyer or law firm,” so the tie must run from the person contacted to the soliciting lawyer or to that lawyer’s firm, and either anchor will do.⁵ A tie between the target and some third person leaves the target a stranger to the lawyer and lowers none of the risks the ban addresses.

A visit to the friend himself would raise a different question, namely whether the friend’s tie to the lawyer is close and personal. That question belongs to the personal half of the exception, and the question of which past dealings amount to a professional relationship belongs to the other half. Each half has its own boundary problem, and each is taken in turn below.

Family and Close Personal Ties

A family relationship is a matter of status, and a lawyer can usually establish it at once: the target is a spouse, a sibling, a parent, or a cousin. A “close personal” relationship is a matter of degree, and the word “close” is the only thing in the text that separates the few people the exception covers from the many people a lawyer happens to know.⁷ Most of the work in this section therefore goes to deciding where “close” ends.

The exception follows from what a lawyer may sensibly do with the people nearest to him. A lawyer is generally permitted to suggest the need for legal services to former clients, family, and close friends.⁸ The Supreme Court made the same point about the Ohio disciplinary rule: by allowing a lawyer to accept employment after giving unsolicited advice to a close friend, relative, or former client, the rule recognizes an exception for activity that is not likely to present the problems that justify the ban.⁹ A sibling or an old friend already knows the lawyer’s character and competence, can ask questions as an equal, and can say no at no more cost than ending any other conversation. A rule that forbade a lawyer to mention legal help to a brother would intrude on family life and protect no one from overreaching. The word “close” keeps the exception from swallowing the ban, because if a passing acquaintance were enough, a lawyer could solicit almost anyone by pointing to a nodding familiarity.

Ohralik v. Ohio State Bar Association shows the failing side of the line. The lawyer approached two young women after an accident. He initiated contact with one and obtained her agreement to let him handle her claim, and he told the other that he had a “tip” for her and was prepared to represent her.¹⁰ The disciplinary board found that the women were, “if anything, casual acquaintances” of the lawyer.¹¹ That finding left him outside the category the Ohio rule recognized when it allowed a lawyer to accept employment from a “close friend, relative, former client” after giving unsolicited advice.¹² Acquaintance of that thin kind gives the target little basis for judging the lawyer and no easy way to refuse, which is the exposure the ban was built to prevent.

Goldwaithe v. Disciplinary Board sits at the opposite pole. The lawyer had done work for a bank and socialized with its president. He told the president that the lawyer’s cousin, also a friend of the president, was near death, and he suggested that if the bank were named executor the lawyer could handle the estate work. The conversation fell within the exception because the president knew the lawyer from both business and social dealings and could weigh the suggestion and decline it. A lawyer may likewise suggest to a family member that a will is needed and then accept the work of drafting it, although the conflict-of-interest rules continue to apply after the solicitation ban is lifted.¹³

The exception asks about the relationship between the target and the lawyer or firm, so the inquiry is fact-specific and runs through the target personally. How well the lawyer knows the target’s relatives or friends is beside the point, as the warehouse example showed. What counts is how well the lawyer knows the person approached.

Hypothetical Illustration

A lawyer and a former law-school roommate have kept up for fifteen years, trading holiday visits and standing as witnesses at each other’s weddings. When the roommate is hurt in a fall at a rental property, the lawyer calls that evening and offers to take the claim on a contingent fee. The call is a solicitation motivated by the fee, yet the long personal history places the roommate within the exception.

Another lawyer has exchanged pleasantries with a fellow condominium owner at three association meetings and knows the owner’s name and little else. When the owner is hurt on the building’s stairs, this lawyer visits uninvited with the same offer. The contact is a live, fee-motivated solicitation, and a nodding familiarity is not a close personal relationship, so no exception applies and the visit violates the ban.

The reasoning behind the rule supplies a working question for facts like these: does the target know this lawyer well enough to judge the approach and decline it without strain? A long shared history, frequent contact, and mutual trust point toward yes, while a few chance meetings, a shared acquaintance, or a name recognized from a bar event point toward no. An exam stem that says only that the lawyer “knows” or has “met” the target has not given facts that establish a close personal relationship, and a relationship that runs through someone else does not substitute for one with the target. The professional half of the exception follows, where the connection comes from past dealings and not from personal closeness.

Prior Business or Professional Ties

Clients supply the clearest professional tie, and the last two items in the text ask whether the target already has a history of dealing with the soliciting lawyer or with that lawyer’s firm.¹⁵ A person the lawyer currently represents has already retained the lawyer, who owes that client a fiduciary duty of honest communication, so an offer of additional services lies outside the solicitation of prospective clients that the ban targets.¹⁶ A former client has a history with the lawyer too, and the exception reaches that person.¹⁷

The two groups of clients are covered for slightly different reasons. A current client sits inside a relationship the rules already police, so the offer does not come from a stranger whose motives the client cannot assess. A former client has seen the lawyer’s work firsthand, and the prior relationship and mutual familiarity reduce the risk that the lawyer will exert undue or misleading influence.¹⁸ The lawyer also remains bound by continuing duties to a former client, among them the perpetual duty to keep the client’s confidences and the duty to decline representation adverse to that client in the same or a substantially related matter, so the lawyer stays accountable in ways a soliciting stranger is not.¹⁹

A lawyer who drafted a client’s will and later calls to suggest an update, because the law or the client’s circumstances have changed, therefore stands inside the exception.²⁰ The relationship runs to the very person contacted, and the call concerns work the lawyer already did for that person. A rule that silenced the lawyer would withhold a warning that the earlier work may have gone stale. The call is still live, lawyer-initiated, and motivated in part by a fee, so it meets every element of the ban, and only the exception takes it outside.

The sources differ on how far a former client’s relationship stretches. The Ohio rule discussed in Ohralik allowed employment from a “former client (if the advice is germane to the former employment),”²¹ and the treatise account says that communication with former clients must be related to the former employment.²² The Model Rule’s words, as quoted, ask only whether the target has a “prior business or professional relationship” with the lawyer or law firm, and they add no germaneness qualifier.²³ The will update satisfies every version. A lawyer who wants to pitch a former client on an unrelated matter should first check the text of the local rule, because that text controls.

The usual error on this exception is to find a real relationship that runs to the wrong person.

The cousin’s history with the firm teaches the woman nothing about the lawyer at her bedside, so none of the risks the ban addresses has shrunk for her. The text names the “lawyer or law firm,” so the tie may run to either one.²⁴ A history with the injured woman herself would have supplied the exception even if a different lawyer at the firm had handled her matter, and a partner who has never met a former client of the firm may call that client. The tie cannot pass through a relative, an employer, or a friend, because the target is the person who needs the familiarity. The text does not say how substantial the prior dealings must be, so the reason behind the exception supplies the test: does the history give the target a real basis for judging this lawyer or firm? A former client of the firm has that basis, while a person who once picked up a firm’s brochure at a trade show does not.

A prospective client who contacts the lawyer first presents a separate situation, whether the person acted on their own initiative or in response to a permissible advertisement. The lawyer’s reply to a request for further information is not subject to the direct-contact rules, because the matter has passed the initial-contact stage at which the danger of pressure was greatest.²⁵ That result comes from the definition of solicitation, not from this exception, since a communication the prospective client initiated is not a solicitation to begin with. Even where a prior relationship does exist, fitting the exception lifts only the ban on live contact, so a former client who has told the lawyer to stop calling must be left alone.²⁶ The third exception drops the relationship requirement altogether and asks instead what the target does with legal services in the course of business.