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Client Solicitation

By the NHBA Ethics Committee Practical Ethics Article: August 13, 1986

Under the Code of Professional Responsibility ("Code"), a lawyer was prohibited from soliciting legal employment from a person who was not a "close friend, relative, former client (if germane to the former employment), or one whom a lawyer reasonable believe[d] to be a client." DR 2-104(A)(1). The Code did not prohibit a lawyer from accepting employment which resulted from his participation in activities designed to educate laypersons to recognize legal problems, from his participation in certain qualified legal assistance organizations, from public speaking or publications on legal topics, or from notices sent to potential class members in a class action. DR 2-104(A)(2), (3), (4), and (5). As was discussed in a prior Practical Ethics column on legal advertising, recent U.S. Supreme Court decisions have resulted in wholesale changes in the ethical rules concerning legal advertising. Related decisions concerning attorney solicitation are causing similar changes in the ethical rules and doctrines relating to lawyer solicitation. See Ohralick v. Ohio State Bar Association, 436, U.S. 447 (1978); In re Primus, 436 U.S. 412 (1978). In an attempt to respond to these decisions, the New Hampshire Rules of Professional Conduct ("Rules") both contract and expand the class of persons or potential clients from whom a lawyer may ethically solicit employment. Solicit and Solicitation Defined The terms "solicit" and "solicitation" were not defined under the Code, but are defined in the Rule to include: "Contact, in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient, but do not include letters addressed or advertising circulars distributed generally to person not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might, in general, find such services useful." Rule 7.3(c) Prohibitions Against Solicitation Generally, the Rules provide that:

"A lawyer may not solicit professional employment from a prospective client with whom the lawyer has not family or prior professional relationship . . . when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, " Rule 7.3(c)

The class of persons known as "close friends" under the Code may no longer be solicited by an attorney. Rule 7.3(c) further prohibits a lawyer from soliciting professional employment from anyone if the lawyer knows or believes that the physical or emotional state of the prospective client will prevent him from exercising reasonable judgment in the employment of a lawyer, or if the prospective client does not want to be solicited. Even if a lawyer would otherwise be authorized to solicit employment from a prospective client under the Rules, Rule 7.3(a) prohibits a lawyer from making a false or deceptive statement or claim or from coercing or harassing a prospective client while soliciting employment. It is safe to assume that

the words "false or deceptive statement or claim" will be read and interpreted consistently with the words "false or misleading communication" which appear and are defined in 7.1. Exception to "No-Solicitation" Rules The second paragraph of Rule 7.3(c) provides two important new exceptions to the "nosolicitation" rules described above. This provision does not appear in the ABA Model Rules of Professional Conduct, and is unique to New Hampshire. The rule provides that the prohibition against solicitation in the first paragraph of Rule 7.3(a):

"Shall not apply to (1) a written solicitation of professional employment to a prospective client in connection with business or commerce carried on or anticipated to be carried on by such a prospective client or (2) a solicitation by a non-profit organization actually engaged in litigation as a form of political expression or association and only in connection with such litigation."

The first exception is justified by the commentators with the argument that business and commercial clients are knowledgeable and aware of their legal rights and of how to hire and fire attorneys so that the various reasons for prohibiting solicitation, such as the fear of overreaching, undue influence, etc., do not appropriately apply to them. The second exception is an attempt to describe those types of solicitation of legal business which have been held by the United States Supreme Court to be protected by the First Amendment. Many commentators feel that this exception is too narrowly drawn to encompass all First Amendment exceptions currently recognized by the Supreme Court. The distinction between allowed general advertising and impermissible direct mail solicitation of non-business or commercial clients is not clear. The "Comments" to the ABA Model Rules of Professional Conduct observe that general advertising or communications are subject to third party scrutiny while direct private contacts between an attorney and prospective client are not. These "Comments" attempt to distinguish allowed "general mailings," which do not speak to a specific matter but necessarily contain general rather than tailored representations and are informative, from prohibited "targeted mailings," which are private, are sent to potential clients who may be specially vulnerable at the time, are importuning and are more likely to contain misrepresentations or overreaching by the lawyer. The difference between what is an appropriate "general mailing" and what is a prohibited "targeted mailing" will probably only be defined in time by the courts. It should be noted in passing, the Rule 7.3(d) essentially encompasses and restates the exceptions to the "no solicitation" rule which appeared in the Code and which are described in the first paragraph of this article. Rule 7.3(c) requires that any written solicitation of business must be labeled "advertising" and that an attorney must keep a copy of the written solicitation and any mailing lists used to disseminate it for a period of two years. Finally, it is professional misconduct for an attorney to attempt to circumvent these rules by hiring or inducing a third party to engage in acts or actions which would violate the rules if performed by the attorney himself. Rule 8.4(a).

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