Target Has Said No

Target Has Said No

Once a person tells a lawyer not to solicit, the lawyer may not solicit that person again. Rule 7.3(c)(1) bars a solicitation when “the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer.”¹ Each phrase of the clause does work. “The target” names the speaker, the person at whom the lawyer aimed the approach. “Made known to the lawyer” makes the trigger a communication that actually reached this lawyer, so a wish the target kept private has not been made known. “A desire not to be solicited by the lawyer” supplies the content: a refusal of this lawyer’s approaches. The clause asks for no reasons, prescribes no form, and says nothing about the lawyer’s motive.

The clause belongs to the final screen, so it operates on top of the permissions that come before it. The live-contact prohibition has exceptions for another lawyer and for anyone with whom the lawyer “has a family, close personal, or prior professional relationship.”² A refusal overrides those exceptions: a lawyer who may open a conversation with a former client loses that permission once the former client says no. The clause also tests something different from the conduct trigger in paragraph (c)(2). Paragraph (c)(2) asks how the lawyer behaved; paragraph (c)(1) asks what the target said.

The lawyer’s motive does not enter the analysis. In Ohralik v. Ohio State Bar Association, the Court recognized that the target of a solicitation may have difficulty avoiding being importuned and distressed even if the lawyer seeking employment is entirely well meaning.³ A lawyer who sincerely believes the target needs help therefore gets no credit for sincerity once the refusal is known. Timing matters as well. The clause speaks of a desire the target “has made known,” so the refusal must come before the contact being tested, and every lawyer-initiated approach after it is barred.

Between the two calls, one fact changed: what Nandi had told Ruiz. Before she spoke, the prior professional relationship made his call permissible. After she spoke, that relationship supported no further approach, because the final screen operates on top of the exceptions.

Three limits follow from the wording. First, the rule asks what the target communicated, so a stem that shows only an unanswered letter has not shown a desire made known. Silence is not a refusal, and the analysis moves to the conduct-based trigger. Second, the refusal attaches to the lawyer who was told. A target who tells one lawyer to stop has made a desire known to that lawyer, and nothing in the text turns that statement into a refusal made known to every other lawyer. Third, the refusal does not reach contacts the target starts. Ohralik describes the problem as “the overtures of an uninvited lawyer.”⁴ A person who calls a lawyer to ask for information, even a person who earlier said no, has invited that contact, and a lawyer who answers has made no overture of his own. The definition of solicitation, covered earlier in this chapter, reaches only lawyer-initiated communications.

Other rules carry the same idea into writing. One state rule on written solicitation, as quoted in the case law, lists among its limits the situation in which “it has been made known to the lawyer that the person does not want to receive such communications from the lawyer.”⁵ The Model Rule reaches letters through the final screen, so a refusal binds the lawyer whatever the medium. The wording differs in one respect worth noticing: the state text says what has been made known to the lawyer without saying by whom, while the Model Rule names the target as the speaker. On a state-specific question, follow that state’s text.

The rule protects the target’s privacy against the intrusion of an unwelcome approach. Ohralik said that the overtures of an uninvited lawyer may distress the person solicited simply because of their obtrusiveness and the invasion of privacy, even when no other harm materializes.⁶ Florida Bar v. Went For It, Inc. recognized as substantial the Bar’s interest in protecting the privacy and tranquility of personal injury victims and their loved ones against intrusive, unsolicited contact by lawyers, and in preventing the erosion of confidence in the profession that such repeated invasions had engendered.⁷ Edenfield v. Fane called the protection of potential clients’ privacy a substantial state interest, because even solicitation that is neither fraudulent nor deceptive may be pressed with such frequency or vehemence as to intimidate, vex, or harass the recipient.⁸ A target who says no tells the lawyer that more contact would intrude on that privacy.

The rule keys on the refusal, and not on proof that a later approach was pushy, for a practical reason. In-person solicitation, Ohralik observed, “is not visible or otherwise open to public scrutiny,” and often no one witnesses it except the lawyer and the person solicited, so reliable proof of what took place is difficult or impossible to obtain.⁹ A test that asked whether the later approach was pushy or harmful would depend on reconstructing that private exchange. A test that asks whether the target said no beforehand depends on one fact, which the target can testify to and the lawyer can admit or deny.

Ohralik is not a paragraph (c)(1) case, but its facts show the pattern the clause forbids. Wanda Holbert had given the lawyer her oral assent. The next day, when he telephoned to speak with her, her mother told him that she and her daughter did not want to sue anyone or to have him represent them, and he insisted that Wanda had entered into a binding agreement.¹⁰ A month later Wanda confirmed in writing that she wanted neither to sue nor to be represented by him. The Court noted that he refused to withdraw when Mrs. Holbert asked him to, and that he kept representing himself to the insurance company as Wanda’s lawyer.¹¹ Pressing on after the target has spoken is the conduct paragraph (c)(1) forbids.

Adams v. Ford Motor Co. offers a comparison, though it concerns a lawyer’s call to a juror and so supports only an analogy. The juror first asked whether she was permitted to speak with the lawyer. Once he told her she could, she spoke with him willingly, though only briefly, before saying she was uncomfortable. As the court notes, he ended the call as soon as she said so.¹² The parallel rule on discharged jurors, Rule 3.5(c)(2), uses the same structure, asking whether the juror has made known to the lawyer a desire not to communicate. Paragraph (c)(1) works the same way: a wish voiced during a contact governs what the lawyer may do next, and a lawyer who stops at once has done what the rule asks.