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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.

Texas Disciplinary Rules of Professional Conduct

Comment - Rule 7.05

1. Rule 7.03 deals with in-person or telephone contact between a lawyer and a prospective client wherein the lawyer seeks professional employment. Rule 7.04 deals with advertisements in the public media by a lawyer seeking professional employment. This Rule deals with written solicitations between a lawyer and a prospective client. Typical examples are letters or other forms of correspondence addressed to a prospective client.

2. Written solicitations raise more concerns than do comparable written advertisements. Being private, they are more difficult to monitor, and for that reason paragraph (d) requires retention for four years of certain information regarding written solicitations. See also Rule 7.07(a). Paragraph (a) addresses such concerns as well as problems stemming from exceptionally outrageous communications such as written solicitations involving fraud, intimidation, or deceptive and misleading claims. Because receipt of multiple solicitations appears to be most pronounced and vexatious in situations involving accident victims, paragraph (b)(7) requires disclosure of the source of information if the solicitation was prompted by a specific occurrence.

3. Because experience has shown that many written solicitations have been intrusive or misleading by reason of being personalized or being disguised as some form of official communication special prohibitions against such practices are necessary. The requirements of paragraph (b) greatly lessen those dangers of deception and harassment.

4. Newsletters or other works published by a lawyer that are not circulated for the purpose of obtaining professional employment are not within the ambit of paragraph (b).

5. In addition to addressing these special problems posed by written solicitations, Rule 7.05 regulates the content of those communications. It does so by incorporating the standards of Rule 7.02 and those of Rule 7.04 that would apply to the written solicitation were it instead a written advertisement in the public media. See paragraphs (a)(2), (3), and (b)(1). In brief, this approach means that, a lawyer may not include or omit anything from a written solicitation unless the lawyer could do so were the communication a written advertisement in the public media, except for those statements or disclaimers required by Rule 7.04(a)-(c). See sub-paragraph (b)(1).

6. Paragraph (e) provides that none of the restrictions in paragraph (b) apply in certain situations because the dangers of deception, harassment, vexation and overreaching are quite low. For example, a written solicitation may be directed to a family member or a present or a former client, or in response to a request by a prospective client. Similarly, a written solicitation may be used in seeking general employment in commercial matters from a bank or other corporation, when there is neither concern with specific existing legal problems nor concern with a particular past event or series of events. All such communications, however, remain subject to Rule 7.02 and paragraphs (h) through (o) of Rule 7.04. See sub-paragraph (a)(2).

7. In addition, paragraph (e) allows such communications in situations not involving the lawyer's pecuniary gain. For purposes of these rules, it is presumed that communications made on behalf of a nonprofit legal aid agency, union, or other qualified nonprofit organization are not motivated by a desire for, or by the possibility of obtaining, pecuniary gain, but that presumption may be rebutted.