Coercion, Duress, or Harassment

Coercion, Duress, or Harassment

Rule 7.3(c)(2) bars a lawyer from soliciting when the solicitation "involves coercion, duress or harassment."¹ The first trigger in the final screen asks what the target told the lawyer. This one asks how the lawyer behaved, and the change of question changes what the analysis can ignore. Whether the target ever objected does not matter. Neither does it matter whether the contact was live or the target fell within an exception to paragraph (b), because paragraph (c) governs contacts the earlier screens have already let through. A lawyer who leans on a former client, a relative, or a friend with improper pressure therefore violates the Rule, though the category of target would otherwise have made the approach permissible.

The other protections in Rule 7.3 depend on things a vulnerable target may be unable to supply. The exceptions to paragraph (b) rest on generalizations about categories of people: another lawyer, or someone with whom the lawyer has a family, close personal, or prior professional relationship.² The refusal trigger depends on a target who is willing and able to say no.³ Neither reaches a lawyer who presses a person who has not yet objected or who finds objecting hard, such as someone frightened or overwhelmed by a recent injury or loss. Paragraph (c)(2) fills that gap by looking directly at the lawyer's conduct, and so it catches the individual case in which the generalization behind an exception fails.

A conduct standard also fits the constitutional setting for lawyer solicitation. Shapero v. Kentucky Bar Association presented the question whether a state may, consistent with the First and Fourteenth Amendments, categorically prohibit lawyers from soliciting legal business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems.⁴ A rule keyed to coercion, duress, or harassment prohibits no category of truthful communication. It asks how the lawyer solicited, so a target's known legal problem, standing alone, does not make a contact improper.

The three words of the clause fall into two groups. Coercion and duress describe pressure that overbears the target's free choice; harassment describes persistence that wears the target down. Because the words are joined by "or," proof of any one of them is enough to bar the contact.⁵ Pressure comes first.

Coercion and Duress

Rule 7.3(c)(2) defines neither coercion nor duress, so their working meaning is the ordinary one: pressure that overbears a person's free choice, so that the person agrees because of the push and not because of his or her own judgment. Ordinary usage draws no sharp line, and the Rule draws none either. The best guide to what such pressure looks like is the Supreme Court's account of why a private approach by a lawyer is dangerous. That account comes from Ohralik v. Ohio State Bar Association, which upheld discipline imposed under Ohio's Disciplinary Rules 2-103(A) and 2-104(A), not under the wording of Rule 7.3(c)(2).⁶ Ohralik therefore pictures the pressure the modern language is meant to reach; it does not apply that language.

A live approach does something an advertisement cannot. An advertisement supplies information and leaves the reader free to act on it or ignore it. In-person solicitation may exert pressure and often demands an immediate response, without an opportunity for comparison or reflection.⁷ The lawyer's presence is the source of the pressure: declining means turning away a person who is standing in the room, and a demand for an answer on the spot removes the time a target would otherwise use to compare lawyers or ask for advice. The usual answer to bad counsel is good counsel, but a private approach leaves no opening for it. The Court observed that the presentation tends to be one-sided, that decisions tend to be quick and perhaps uninformed, and that no bar agency, supervisory authority, or person close to the solicited individual has any opportunity to intervene or counter-educate.⁸ The Court has since characterized face-to-face solicitation as "a practice rife with possibilities for overreaching, invasion of privacy, the exercise of undue influence, and outright fraud," and it named the "coercive force of the personal presence of a trained advocate" and the "pressure on the potential client for an immediate yes-or-no answer" as reasons for strong controls.⁹

How much pressure is too much depends on who is being pressed. The potential for overreaching is significantly greater when a lawyer, a professional trained in the art of persuasion, personally solicits an unsophisticated, injured, or distressed lay person. Such a person may place trust in the lawyer, whatever the lawyer's qualifications or the person's actual need for counsel, simply in response to persuasion under circumstances conducive to uninformed acquiescence.¹⁰ The Court answered the argument that personal solicitation is valuable because it tells a victim of misfortune about legal rights: the victim's plight makes the person more vulnerable to influence and may make advice all the more intrusive.¹¹

The lawyer's financial stake raises the risk. A prospective client often feels overwhelmed and may have an impaired capacity for reason, judgment, and protective self-interest, while the lawyer seeking the retainer has a conflict arising from the lawyer's own interest that may color the advice offered. The justification given for a 30-day restriction on direct solicitation draws the conclusion: the situation is fraught with the possibility of undue influence, intimidation, and overreaching.¹² In Ohralik the Court held that a state may constitutionally discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers the state has a right to prevent.¹³

Ohralik shows these features operating together. The lawyer found Carol McClintock lying in traction in her hospital room, told her he would represent her, and asked her to sign an agreement. She said she would have to discuss it with her parents, did not sign, and asked him to have them come see her.¹⁴ He also sought out Wanda Lou Holbert on the day she came home from the hospital, knowing from his earlier inquiries that she had just been released.¹⁵ Holbert was eighteen and not a high school graduate. When he asked whether she would file a claim, she said she really did not understand what was going on; he offered to represent her for a contingent fee of one-third of any recovery, and she said "O. K."¹⁶ The Court noted that he urged his services on both young women and used what he had learned from the McClintocks, and his agreement with Carol, to induce Holbert's assent.¹⁷

Nothing in that account is a threat. The pressure came from the timing, the setting, the targets' condition, and the lawyer's insistence, and pressure of that kind can count under paragraph (c)(2) without any threat. The Court also declined to require the state to prove actual injury in addition to the solicitation. In-person solicitation is not open to public scrutiny, there is often no witness other than the lawyer and the target, and a distressed target may be unable to recall details later.¹⁸ A conduct standard fits that concern, since it asks what the lawyer did and waits for neither an objection nor a loss. Under the conditions the Court described, the target's "yes" may reflect uninformed acquiescence and not choice. That is why the Rule reaches the conduct that produces such a yes even when the target never said no and even when an exception to paragraph (b) would otherwise apply.

Bar-exam problems often pair a permitted category of target with facts that ask whether the lawyer went too far, and a call to a former client shows both outcomes. A former client falls within the prior-professional-relationship exception to paragraph (b), so a live approach clears that screen; paragraph (c)(2) then asks whether the manner of the approach was acceptable.¹⁹

Both lawyers stood to be paid if hired, so the financial interest explains why regulators watch these contacts but cannot separate the two scenes. What separates them is that Okafor gave Weiss time and room to say no, while the second lawyer demanded an immediate answer from a person recently hurt and told him that delay would cost him evidence. The former-client label settles only the paragraph (b) question, and paragraph (c)(2) asks separately whether the lawyer's manner left the target free to choose. Look for a demand for an immediate answer, a deadline the lawyer sets, a target who is injured or distressed, a setting that gives the target no chance to compare or consult, and a lawyer who keeps pressing. The Rule supplies no checklist, so no single fact decides the question; the issue is whether the combination overbears the target's free choice.

Harassment

Harassment is the word in Rule 7.3(c)(2) that describes persistence, and the Rule leaves it undefined.²³ The most developed judicial treatment comes from a case under a different rule. In Adams v. Ford Motor Co., the Third Circuit asked whether a lawyer's contact with a discharged juror was harassment under Model Rule 3.5, which uses the same word.²⁴ The court found no case in its jurisdiction defining harassment under that rule and no help in the comments, so it did what courts ordinarily do with an undefined word: it consulted legal and general dictionaries for the ordinary meaning.²⁵ That origin limits how far the definition can be pushed. It is a dictionary reading applied under Rule 3.5, so it guides by analogy and is neither a holding about Rule 7.3 nor a settled test under paragraph (c)(2). It remains a sensible guide because Rule 7.3(c)(2) uses the identical undefined word, and a reader facing silent text falls back on what the word ordinarily means.

Black's Law Dictionary, the reference the court used, defines harassment as "words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose."²⁶ The parts of that definition work together, and repetition is usual but not indispensable, so the definition is best run as a short series of questions whose answers are weighed together and not ticked off as a checklist.

Repetition matters because it changes what the communication does. A single, properly made offer gives the target information and a choice. Each further approach adds nothing the target does not already know and raises the cost of saying no, until accepting becomes the quickest way to end the intrusion. The Supreme Court has recognized that this danger is real even when every word is true: protecting potential clients' privacy is a substantial state interest, and solicitation that is neither fraudulent nor deceptive may be pressed with such frequency or vehemence as to intimidate, vex, or harass the recipient.²⁷ In a separate case about lawyers, the Court recognized a substantial bar interest in protecting personal injury victims and their loved ones against intrusive, unsolicited contact and in preventing the erosion of confidence in the profession that repeated invasions have engendered.²⁸ The dictionary calls repetition usual and not indispensable, and the Court's reference to vehemence points the same way. A single contact of extraordinary intensity is therefore not automatically outside the clause, although without repetition the other features must carry more of the weight.²⁹

The Third Circuit applied the dictionary definition and concluded that the conduct before it "cannot possibly constitute harassment." It held that the lower court abused its discretion in finding misconduct, because that ruling rested on a clearly erroneous assessment of the evidence.³⁰ The edge of the definition is easy to picture. A single brief call, made for a reason connected to the lawyer's work, that ends the moment the person voices discomfort repeats nothing, distresses no one, and serves a purpose beyond pressing for business. The calls to Bell reverse each feature: many contacts replace one, the purpose is only to press, and nothing in the lawyer's conduct shows any willingness to stop.

The purpose element needs care when it is carried over to solicitation. Every solicitation aims at being hired, so that aim cannot by itself count as a legitimate purpose without leaving the clause with nothing to do. The workable question is whether the amount and manner of the contact go beyond what one properly made offer requires.

Harassment overlaps with the refusal trigger without depending on it. Repeated approaches after the target has said no can be both a barred solicitation under paragraph (c)(1) and harassment under paragraph (c)(2), and an answer to a stem that contains a refusal followed by more calls should name both.³¹ The Bell facts show harassment with no refusal at all, so the absence of a refusal ends the analysis under paragraph (c)(1) and leaves paragraph (c)(2) fully open. Neither the Rule nor the dictionary definition supplies a number of contacts that makes persistence harassment, and an answer should not invent one. The question is whether the repetition, the effect on the person, and the manner of the contact fit the ordinary meaning of the word.