Current through Register Vol. 39, No. 6, September 16, 2024
(a)
"Solicitation" or "solicit" denotes a 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.
(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;
(2) person who has a family, close personal,
or prior business or professional relationship with the lawyer or law firm;
or
(3) person who routinely uses
for business purposes the type of legal services offered by the
lawyer.
(c) A lawyer
shall not solicit professional employment 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; or
(2) the solicitation
involves coercion, duress, or harassment.
(d) This Rule does not prohibit
communications authorized by law or ordered by a court or other
tribunal.
(e) Notwithstanding the
prohibitions in this Rule, a lawyer may participate with a prepaid legal
service plan in compliance with 27 N.C. Admin. Code 1E.0301 et seq. that uses
live person-to-person contact to enroll members or sell subscriptions for the
plan to persons who are not known to need legal services in a particular matter
covered by the plan, provided that, after reasonable investigation, the lawyer
must have a good faith belief that the plan is being operated in compliance
with 27 N.C. Admin. Code 1E.0301 et seq., and the lawyer's participation in the
plan does not otherwise violate the Rules of Professional Conduct.
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 and other real-time 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
does not include chat rooms, text messages, 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 by live person-to-person contact. This form of contact subjects
a person to the private importuning of the 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
fully to 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] This potential for overreaching inherent
in live person-to-person 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 and 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, family,
business, or professional 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 abuse when the person contacted is a lawyer or is
known to routinely use the type of legal services involved for business
purposes. Examples include persons who routinely hire outside counsel to
represent the entity; entrepreneurs who regularly engage business, employment,
or intellectual property lawyers; small business proprietors who routinely hire
lawyers for lease or contract issues; and other people who routinely retain
lawyers for business transactions or formations. Paragraph (a) 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 its members or
beneficiaries.
[6] A solicitation
that contains false or misleading information within the meaning of Rule 7.1,
which involves coercion, duress, or harassment within the meaning of Rule
7.3(c)(2), or that involves contact with someone who has made known to the
lawyer a desire not to be solicited by the lawyer within the meaning of Rule
7.3(c)(1) is prohibited.
Contact to Establish Prepaid Legal Service Plan
[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 purpose of 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] Communications
authorized by law or ordered by a court or tribunal include a notice to
potential members of a class in class action litigation.
Contact to Enroll Members in Prepaid Legal Service
Plan
[9] Paragraph (e) 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 (e) 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 also 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 27 N.C. Admin.
Code 1E.0301 et seq., as well as Rules 7.1, 7.2 and 7.3(c).
