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Massachusetts Rules of Professional Conduct Rule 7.3: Solicitation of Professional Employment

[Disclaimer]

(a) In soliciting professional employment, a lawyer shall not coerce or harass a prospective client and shall not make a false or misleading communication.

(b) A lawyer shall not solicit professional employment if:

(1) the lawyer knows or reasonably should know that the physical, mental, or emotional state of the prospective client is such that there is a substantial potential that the person cannot exercise reasonable judgment in employing a lawyer, provided, however, that this prohibition shall not apply to solicitation not for a fee; or

(2) the prospective client has made known to the lawyer a desire not to be solicited.

(c) Except as provided in paragraph (e), a lawyer shall not solicit professional employment for a fee from a prospective client known to be in need of legal services in a particular matter by written communication, including audio or video cassette or other electronic communication, unless the lawyer retains a copy of such communication for two years.

(d) Except as provided in paragraph (e), a lawyer shall not solicit professional employment for a fee from a prospective client in person or by personal communication by telephone, electronic device, or otherwise.

(e) The following communications shall be exempt from the provisions of paragraphs (c) and (d) above:

(1) communications to members of the bar of any state or jurisdiction;

(2) communications to individuals who are (A) the grandparents of the lawyer or the lawyer's spouse, (B) descendants of the grandparents of the lawyer or the lawyer's spouse, or (C) the spouse of any of the foregoing persons;

(3) communications to prospective clients with whom the lawyer had a prior attorney client relationship; and

(4) communications with (i) organizations, including non profit and governmental entities, in connection with the activities of such organizations, and (ii) with persons engaged in trade or commerce as defined in G. L. c. 93A, ยง 1(b), in connection with such persons' trade or commerce.

(f) A lawyer shall not give anything of value to any person or organization to solicit professional employment for the lawyer from a prospective client. However, this rule does not prohibit a lawyer or a partner or associate or any other lawyer affiliated with the lawyer or the lawyer's firm from requesting referrals from a lawyer referral service operated, sponsored, or approved by a bar association or from cooperating with any qualified legal assistance organization. Such requests for referrals or cooperation may include a sharing of fee awards as provided in Rule 5.4(a)(4).

Adopted June 9, 1997, effective January 1, 1998. Amended August 31, 1999, effective October 1, 1999; amended October 27, 1999, effective December 1, 1999; amended effective April 1, 2000.

Comment:

[1] This rule applies to solicitation, the obtaining of business through letter, e-mail, telephone, in person or other communications directed to particular prospective clients. It does not apply to non-targeted advertising, the obtaining of business through communications circulated more generally and more indirectly than that, such as through web sites, newspapers, or placards in mass transit vehicles. This rule allows lawyers to conduct some form of solicitation of employment from all prospective clients, except in a small number of very special circumstances, and hence permits prospective clients 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.

[2] Paragraphs (a) and (b) apply whenever a lawyer is engaging in solicitation that is not prohibited under another paragraph of this Rule. In determining whether a contact is permissible under Rule 7.3(b)(1), 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 prospective client" is intended to be all inclusive of the condition of such person and includes a prospective client who for any reason lacks sufficient sophistication to be able to select a lawyer. A proviso in subparagraph (b)(1) makes clear that it is not intended to reduce the ability possessed by non-profit organizations to contact the elderly and the mentally disturbed or disabled. Abuse of the right to solicit such persons by non profit organizations would probably constitute a violation of paragraph (a) of the rule or Rule 8.4(c), (d), or (h). The references in paragraph (b)(1), (c), and (d) of the rule to solicitation "for a fee" are intended to carry forward the exemption in former DR 2-103 for 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 paragraphs (a) and (f) and subparagraph (b)(2).

[3] Paragraph (c) imposes minimum regulations on solicitation by certain written and other communication that is not interactive. Copies of such solicitations must be retained for two years. Paragraph (c) applies only in situations where the person is known to be in need of services in a particular matter. For purposes of paragraph (c) a prospective client is "known to be in need of legal services in a particular matter" in circumstances including, but not limited to, all instances in which the communication by the lawyer concerns an event specific to the person solicited that is pending or has already occurred, such as a personal injury, a criminal charge, or a real estate purchase or foreclosure.

[4] While paragraph (c) permits written and other nondirect solicitation of any prospective client, except under the special circumstances set forth in paragraphs (a) and (b), paragraph (d) prohibits solicitation in person or by personal communication except in the situations described in paragraph (e). See also Comment 3A to Rule 7.2, discussing prohibited personal solicitation through chat groups or other interactive computer accessed or similar types of communications. Subparagraph (e)(4) permits in person solicitation of organizations engaged in trade or commerce, governmental entities, and non profit entities.

[4A] Paragraph (e) acknowledges 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 prospective client 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, non-profit, 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 (e)(4) permits in person solicitation of organizations, whether the organization is a non profit or governmental organization, in connection with the activities of such organizations, and of individuals engaged in trade or commerce, in connection with the trade or commerce of such individuals.

[5] Paragraph (f) prohibits lawyers from paying a person or organization to solicit on their behalf. The provision should be read together with Rule 8.4(a), which prohibits a lawyer from violating these rules through the acts of another. The rule contains an exception for requests for referrals from described organizations.

Corresponding ABA Model Rule. Different from Model Rule 7.3.

Corresponding Former Massachusetts Rule. DR 2-103.