204 Pa. Code r. 7.3 - Solicitation of Clients
(a)
"Solicitation" or "solicit" denotes a communication initiated by or on behalf
of a lawyer or law firm that is directed to a specific person the lawyer knows
or reasonably should know needs legal services in a particular matter and that
offers to provide, or reasonably can be understood as offering to provide,
legal services for that matter.
(b)
A lawyer shall not solicit professional employment by live person-to-person
contact when a significant motive for the lawyer's doing so is the lawyer's or
law firm's pecuniary gain, unless the contact is with a:
(1) lawyer; or
(2) person who has a family, close personal,
or prior professional relationship with the lawyer or law firm.
(c) A lawyer may utilize targeted,
direct mail advertisements to solicit professional employment.
(d) A lawyer shall not solicit professional
employment even when not otherwise prohibited by para-graph (b), if:
(1) the lawyer knows or reasonably should
know that the physical, emotional or mental state of the target of the
solicitation is such that the person could not exercise reasonable judgment in
employing a lawyer;
(2) the target
of the solicitation has made known to the lawyer a desire not to receive
communications from the lawyer;
(3) the solicitation involves coercion,
duress, or harassment; or
(4) the
solicitation is directed to a party who has been named as a defendant or
respondent in a domestic relations action. In such cases, the lawyer shall wait
until proof of service appears on the docket before communication with the
named defendant or respondent.
(e) This Rule does not prohibit
communications authorized by law or ordered by a court or other
tribunal.
(f) Notwithstanding the
prohibitions in this Rule, a lawyer may participate with a prepaid or group
legal service plan operated by an organization not owned or directed by the
lawyer that uses live person-to-person contact to enroll members or sell
subscriptions for the plan from persons who are not known to need legal
services in a particular matter covered by the plan.
Comment:
(1)
Paragraph (b) prohibits a lawyer from soliciting professional employment by
live person-to-person contact when a significant motive for the lawyer's doing
so is the lawyer's or the law firm's pecuniary gain. A lawyer's communication
is not a solicitation if it is directed to the general public, such as through
a billboard, an Internet banner advertisement, a website or a television
commercial, or if it is in response to a request for information or is
automatically generated in response to electronic searches.
(2) "Live person-to-person contact" means
in-person, face-to-face, live telephone visual or auditory person-to-person
communications where the person is subject to a direct personal encounter
without time for reflection. Such person-to-person contact includes text
messages. Person-to-person contact does not include chat rooms or other written
communications that recipients may easily disregard. A potential for
overreaching exists when a lawyer, seeking pecuniary gain, solicits a person
known to be in need of legal services. This form of contact subjects a person
to the private importuning of a trained advocate, in a direct interpersonal
encounter. The person who may already feel overwhelmed by the circumstances
giving rise to the need for legal services, may find it difficult to fully
evaluate all available alternatives with reasoned judgment and appropriate
self-interest in the face of the lawyer's presence and insistence upon an
immediate response. The situation is fraught with the possibility of undue
influence, intimidation, and over-reaching.
(3) The potential for overreaching inherent
in live person-to-person contact, justifies its prohibition, since lawyers have
alternative means of conveying necessary information. In particular,
communications can be mailed or transmitted by email or other electronic means
that do not violate other laws . These forms of communications make it possible
for the public to be informed about the need for legal services, and about the
qualifications of available lawyers and law firms, without subjecting the
public to live person-to-person persuasion that may overwhelm a person's
judgment.
(4) The contents of live
person-to-person contact can be disputed and may not be subject to third-party
scrutiny. Consequently, they are much more likely to approach (and occasionally
cross) the dividing line between accurate representations from those that are
false and misleading.
(5) There is
far less likelihood that a lawyer would engage in overreaching against a former
client, or a person with whom the lawyer has a close personal or family
relationship, or in situations in which the lawyer is motivated by
considerations other than the lawyer's pecuniary gain. Nor is there a serious
potential for overreaching when the person contacted is a lawyer. Consequently,
the general prohibition in Rule
7.3(a) is not
applicable in those situations. Paragraph (b)is not intended to prohibit a
lawyer from participating in constitutionally protected activities of public or
charitable legal-service organizations or bona fide political, social, civic,
fraternal, employee or trade organizations whose purposes include providing or
recommending legal services to their members or beneficiaries.
(6) A solicitation that contains false or
misleading information within the meaning of Rule
7.1, that involves coercion,
duress or harassment within the meaning of Rule
7.3(d)(3), or
that involves contact with someone who has made known to the lawyer desire not
to be solicited by the lawyer within the meaning of Rule
7.3(d)(2) is
prohibited. Moreover, if after sending a letter or other communication as
permitted by Rule
7.2 the lawyer receives no
response, any further effort to communicate with the recipient of the
communication may violate the provisions of Rule
7.3(b). Live,
person-to-person contact of individuals who may be especially vulnerable to
coercion or duress is ordinarily not appropriate, for example, the elderly,
those whose first language is not English, or the disabled.
(7) This Rule does not prohibit a lawyer from
contacting representatives of organizations or groups that may be interested in
establishing a group or prepaid legal plan for their members, insureds,
beneficiaries or other third-parties for the purposes informing such entities
of the availability of and details concerning the plan or arrangement which the
lawyer or lawyer's firm is willing to offer. This form of communication is not
directed to people who are seeking legal services for themselves. Rather, 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. Under these circumstances, the activity
which the lawyer undertakes in communicating with such representatives and the
type of information transmitted to the individual are functionally similar to
and serve the same purpose as advertising permitted under Rule
7.2.
(8) In Rule
7.3(d)(4), the
term "domestic relations actions" includes the actions governed by the Family
Court Rules, see Pa.R.C.R No. 1931(a), and actions pursuant to the Protection
of Victims of Sexual Violence or Intimidation Act, see
42 Pa.C.S. ยงยง
62A03
et seq. In such cases, a defendant/respondent party's receipt
of a lawyer's solicitation prior to being served with the complaint can
increase the risk of a violent confrontation between the parties. The
prohibition in RPC 7.3(d)(4) against any solicitation prior to proof of service
appearing on the docket is intended to reduce any such risk and allow for the
plaintiff to take any appropriate steps.
(9) Communications authorized by law or
ordered by a court or tribunal include a notice to potential members of a class
in class action litigation.
(10)
Paragraph (f) of this Rule permits a lawyer to participate with an organization
which uses personal contact to enroll members for its group or prepaid legal
service plan, provided that the personal contact is not undertaken by any
lawyer who would be a provider of legal services through the plan. The
organization must not be owned by or directed (whether as manager or otherwise)
by any lawyer or law firm that participates in the plan. For example, paragraph
(f) would not permit a lawyer to create an organization controlled directly or
indirectly by the lawyer and use the organization for the person-to-person
solicitation of legal employment of the lawyer through memberships in the plan
or otherwise. The communication permitted by these organizations must not be
directed to a person known to need legal services in a particular matter, but
must be designed to inform potential plan members generally of another means of
affordable legal services. Lawyers who participate in a legal service plan must
reasonably assure that the plan sponsors are in compliance with Rules
7.1,
7.2 and
7.3(d).
Notes
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