Supreme Judicial Court Rules

Rules of Professional Conduct

Supreme Judicial Court Rules Rules of Professional Conduct Rule 7.3: Solicitation of clients

Effective Date: 07/01/2015
Updates: Adopted March 26, 2015, effective July 1, 2015

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(a)

 A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment for a fee, unless the person contacted: 

(1) is a lawyer; 

(2) has a prior professional relationship with the lawyer; 

(3) is a grandparent of the lawyer or the lawyer’s spouse, a descendant of the grandparents of the lawyer or the lawyer’s spouse, or the spouse of any of the foregoing persons; or 

(4) is (i) a representative of an organization, including a non-profit or government entity, in connection with the activities of such organization, or (ii) a person engaged in trade or commerce as defined in G. L. c. 93A, § 1(b) , in connection with such person’s trade or commerce. 

(b)

A lawyer shall not solicit professional employment by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if: 

(1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; 

(2) the solicitation involves coercion, duress or harassment; or 

(3) the lawyer knows or reasonably should know that the physical, mental, or emotional state of the target of the solicitation is such that the target cannot exercise reasonable judgment in employing a lawyer, provided, however, the prohibition in this clause (3) only applies to solicitations for a fee. 

(c)

[Reserved]

(d)

Notwithstanding the prohibitions in paragraph (a), a lawyer may request referrals from a lawyer referral service operated, sponsored, or approved by a bar association or other non-profit organization, and cooperate with any other qualified legal assistance organization. 

Comment

[1] A solicitation is a targeted communication initiated by the lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services. In contrast, a lawyer’s communication typically does not constitute 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 Internet searches. 

[2] This Rule allows lawyers to conduct some form of solicitation of employment, except in a small number of very special circumstances, and hence permits the public to receive information about legal services that may be useful to them. At the same time it recognizes the possibility of undue influence, intimidation, and overreaching presented by personal solicitation in the circumstances prohibited by this Rule and seeks to limit them by regulating the form and manner of solicitation by rules that reach no further than the danger that is perceived. Lawyers are also required to comply with other applicable laws that govern solicitations. 

[3] Paragraph (a) applies to in-person, live telephone, and real-time electronic contact by a lawyer. Paragraph (b) applies to all forms of solicitation, including both the real-time solicitation covered by paragraph (a) and solicitation by written, recorded or other forms of electronic communication such as email. In determining whether a contact is permissible under Rule 7.3(b)(3), it is relevant to consider the times and circumstances under which the contact is initiated. For example, a person undergoing active medical treatment for traumatic injury is unlikely to be in an emotional state in which reasonable judgment about employing a lawyer can be exercised. The reference to the “physical, mental, or emotional state of the target of the solicitation” is intended to be all-inclusive of the condition of such person and includes anyone who for any reason lacks sufficient sophistication to be able to select a lawyer. A proviso in subparagraph (b)(3) makes clear that it is not intended to reduce the ability possessed by nonprofit organizations to contact the elderly and the mentally disturbed or disabled. Abuse of the right to solicit such persons by non-profit organizations may constitute a violation of paragraph (b)(2) of the Rule or Rule 8.4(c) or (d). The references in paragraph (a) and (b)(3) of the Rule to solicitation “for a fee” are intended to exempt solicitations by non-profit organizations. Where such an organization is involved, the fact that there may be a statutory entitlement to a fee is not intended by itself to bring the solicitation within the scope of the Rule. There is no blanket exemption from regulation for all solicitation that is not done “for a fee.” Non-profit organizations are subject to the general prohibitions of subparagraphs (b)(1) and (b)(2). 

[4] The use of general advertising and written, recorded or electronic communications to transmit information from lawyer to the public, rather than direct in person, live telephone or real-time electronic contact, will help to assure that the information flows cleanly as well as freely. The contents of advertisements and communications permitted under Rule 7.2 can be permanently recorded so that they cannot be disputed and may be shared with others who know the lawyer. This potential for informal review is itself likely to help guard against statements and claims that might constitute false and misleading communications, in violation of Rule 7.1. The contents of direct in person, live telephone or real-time electronic 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 and those that are false and misleading. 

[5] While paragraph (b) permits written and other nondirect solicitation of any person, except under the special circumstances set forth in subparagraphs (1) through (3), paragraph (a) prohibits solicitation in person or by live telephone or real-time electronic communication, except in the situations described in subparagraphs (1) through (4). See also Comment 3A to Rule 7.2, discussing prohibited personal solicitation through computer-accessed or similar types of communications. The prohibitions of paragraph (a) do not of course apply to in-person solicitation after contact has been initiated by a person seeking legal services. 

[6] Subparagraphs (1) through (4) of paragraph (a) acknowledge that there are certain situations and relationships in which concerns about overreaching and undue influence do not have sufficient force to justify banning all in-person solicitation. The risk of overreaching and undue influence is diminished where the target of the solicitation is a former client or a member of the lawyer’s immediate family. The word “descendant” is intended to include adopted and step-members of the family. Similarly, other lawyers and those who manage commercial, nonprofit, and governmental entities generally have the experience and judgment to make reasonable decisions with respect to the importunings of trained advocates soliciting legal business Subparagraph (a)(4) permits in-person solicitation of organizations, whether the organization is a non-profit or governmental organization, in connection with the activities of such organization, and of individuals engaged in trade or commerce, in connection with the trade or commerce of such individuals. 

[7] Paragraph (d) permits a lawyer to request referrals from described organizations.

Downloads for Rules of Professional Conduct Rule 7.3: Solicitation of clients

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Updates: Adopted March 26, 2015, effective July 1, 2015
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