Approaching Plan Sponsors

Approaching Plan Sponsors

Rule 7.3(e) governs one live contact: the plan's own calls to enroll members who are not known to need legal services in a matter the plan covers.¹ A second contact comes earlier in a plan's life and involves a different speaker, the lawyer who wants to join the plan. Comment 7 to Rule 7.3, not the text of paragraph (e), permits that contact. The comment lets a lawyer contact directly the representatives of organizations or groups seeking to establish a legal service plan, even though the general ban on in-person, live telephone, and real-time electronic solicitation would otherwise apply. The lawyer may tell those representatives that she is available to participate in the plan, discuss details concerning the plan, and describe the services the lawyer or firm is willing to offer.²

The permission follows from the harm the ban targets. In-person solicitation may exert pressure, often demands an immediate response, and offers no opportunity for comparison or reflection.³ The harm is sharpest when one person must decide alone, on the spot, whether to hire the lawyer standing in front of them. A plan sponsor's representative is not in that position. Comment 7 describes this communication as one that "is not directed to people who are seeking legal services for themselves," and says it is usually addressed "to an individual acting in a fiduciary capacity seeking a supplier of legal services for others who may, if they choose, become prospective clients of the lawyer."⁴ A fiduciary, here, is someone such as a union trustee or plan administrator who acts for others and owes them a duty of loyalty.

That position answers each of the three dangers. No personal legal crisis pushes the representative toward a hasty answer. The representative can take time to compare proposals from several firms and consult the group's other leaders before choosing. And the members keep the last word, because a member who joins the plan still decides whether to use the lawyer when a legal need actually arises. The choice the ban protects, an individual's decision to hire a lawyer for a personal problem, is not made in the meeting with the sponsor.

The lawyer is the same in both scenes. What changed the result is the person addressed and the capacity in which that person listens. The trustees heard the pitch as agents of the membership and could carry it back to the group for discussion; the teacher heard it as a person with a problem of his own. The second contact meets every feature of solicitation described earlier, so the ban, which remains nearly absolute, governs it.⁵ The permission tracks capacity, not title. A trustee who is taken aside and offered help with the trustee's own divorce is being solicited as an individual, and the comment's reasoning gives the lawyer no shelter for that conversation.

Exam stems often put both contacts in one story, so assign each to its own provision. When the plan's own staff telephone members to enroll them, Rule 7.3(e) supplies the test, and its three conditions about the sponsor, the prospects, and the purpose of the call control.⁶ When the lawyer personally approaches the people setting up the plan, the commentary supplies the test: is the lawyer addressing a representative who acts for others in choosing a supplier of legal services? A lawyer who treats the sponsor meeting as a Rule 7.3(e) problem asks the wrong questions. A lawyer who treats the plan's enrollment calls as covered by the comment overlooks the conditions that keep those calls from becoming one lawyer's pitch. What the participating lawyer may pay the plan, and what the lawyer must monitor about its conduct, are separate duties taken up in the sections that follow.