Concept

Applying the Full Sequence

Is the solicitation barred anyway under Rule 7.3(c)?

Applying the Full Sequence

Rule 7.3(c) is the last stop in a sequence of questions, and it operates only on contacts the earlier questions have let through. A lawyer may not solicit when the target has made known a desire not to be solicited by the lawyer, or when the solicitation involves coercion, duress, or harassment, and each bar holds even where paragraph (b) would not prohibit the contact.¹ One helpful way to see why the Rule is built in layers is as a tug-of-war between the First Amendment, which since Bates v. Arizona State Bar protects attorney advertising as commercial speech, and the desire of state regulators to keep a tight leash on advertising so that law remains a profession and not a mere business.²

Asking the questions in order keeps each safeguard doing its own job. The definition of solicitation identifies what the Rule regulates at all. The ban on live contact picks out the setting of greatest risk. The exceptions pick out the targets for whom that risk is generally lower. The final screen picks out the contacts in which the generalization behind an exception fails. A student who stops after finding a relationship exception has answered the third question and skipped the fourth, and exam stems about friends, relatives, and former clients are written to invite exactly that stop.

Exam Analysis Steps

Each screen assumes the one before it has been passed, so the questions run in a fixed order, and the last two are the ones no exception can answer for you. The steps are these:

Ask whether the communication is a solicitation, meaning a lawyer-initiated communication directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and offering to provide them. A communication the target started, or a general advertisement, ends the inquiry.
Ask whether paragraph (b) reaches the contact, which depends on whether it was live (in person, by live telephone, or in real time). A letter or an email does not trigger the live-contact bar.
If the contact was live, ask whether the target is a lawyer, a relative or close friend, a person with whom the lawyer has a prior professional relationship, or a routine business user of this kind of legal service. If so, an exception takes the contact out of paragraph (b).
Ask whether the target made known to this lawyer, before the contact being tested, a desire not to be solicited by the lawyer. A refusal restores the bar under paragraph (c)(1).
Ask whether the lawyer's manner involved coercion, duress, or harassment. That conduct restores the bar under paragraph (c)(2) whether or not the target ever objected.

A contact is permitted only if it clears every question that applies to it, and a single bar makes it a violation. A contact that is not live passes the second question by its medium alone, yet it still faces the fourth and fifth, so a letter or an email to a friend is not safe merely because paragraph (b) is silent. The carve-outs for communications authorized by law or ordered by a tribunal, and for participation in qualifying group legal service plans, covered above, sit outside this sequence because each speaks to the whole Rule.

The way a relationship exception works shows in the facts of Goldwaithe v. Disciplinary Board, as the Rule's comments describe them. The decision predates the current Rule, so it serves here only to show an exception at work and says nothing about paragraph (c). A lawyer who had done work for a bank, and who knew its president socially, told him that the lawyer's cousin, a friend of the president, was near death, and suggested that the bank be named executor with the lawyer retained. Run through the first three questions: the lawyer initiated the contact, aimed it at a specific person, and offered legal services in a particular matter, so it was a solicitation; it was a live conversation, so paragraph (b) would bar it unless an exception applied; and the lawyer's prior work for the bank and acquaintance with its president supply the relationship exception. The exception fits because a president who knows the lawyer can weigh the suggestion against what he already knows of the lawyer's work and motives.

The last two questions come out the same way on those facts. The facts report a single suggestion, no refusal by the president, and no pressure or persistence by the lawyer, so neither trigger in paragraph (c) is present and the contact is permitted. An examiner who wants to test the final screen keeps the relationship and the lunch and changes what happens afterward.

Hypothetical Illustration

A lawyer who has done work for a bank suggests to its president, over lunch, that the bank be named executor of a dying friend's estate with her retained. The president tells her he does not want estate work raised with him again. At their next lunch she raises it again. The prior professional relationship that excused the first remark does not excuse the second, because the president made known, before the second contact, a desire not to be solicited by this lawyer, and paragraph (c)(1) bars the second contact.

In a second version, the president never says anything of the kind. Instead the lawyer telephones him at home every evening for two weeks, insists that the bank decide at once, and remarks that the bank might want to consider who handles its other matters. With no refusal on record, paragraph (c)(1) is silent. The nightly calls, the demand for an immediate decision, and the veiled reference to the bank's other work involve coercion, duress, or harassment, so paragraph (c)(2) bars the solicitation despite the relationship.

Across the three conversations the relationship and the medium never changed, and a different fact moved each time. In the first version, what the president told the lawyer moved, and the second lunch is barred because the refusal came before it; the clause asks nothing about the lawyer's manner.³ In the second version, the lawyer's behavior moved, and the contact is barred without any statement from the president, because the clause looks to the lawyer's conduct and does not wait for the target to object.⁴ Each trigger therefore needs its own question. A stem that shows only that the president never returned the lawyer's calls has shown no refusal, so the analysis moves to the conduct question, where unanswered and repeated calls may still add up to harassment.

Violations carry real weight. In one Louisiana disciplinary decision, the court called a Rule 7.3 solicitation violation serious misconduct, quoted an earlier case calling solicitation abhorrent to the legal profession, and identified disbarment as the baseline sanction for such a violation.⁵ That is the baseline in that jurisdiction, not a nationwide rule.

Applying the Full Sequence

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