There is considerable variation between U.S. states and this portion of the Rules of Professional Conduct in each U.S. jurisdiction varies considerably.
Some states have abolished these ethical limits on solicitation of clients entirely, some states have strict restrictions, and others are in between.
All U.S. jurisdictions, however, use the same numbering system for their ethical rules for lawyers (although some regulate this by statute rather than ethical rule) and the primary relevant ethics rule for this subject matter for U.S. lawyers is Rule of Professional Conduct 7.3 in jurisdictions that still have a Rule 7.3.
The modern trend has been to deregulate lawyer advertising and solicitation of clients, mostly out of concerns about First Amendment limitations on these regulations and out of anti-trust concerns associated with prior regulations.
Rule 7.3. Solicitation of Clients As amended through Rule Change
2020(29), effective October 2020.
(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;
(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 (b), 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) A lawyer shall not engage in solicitation by any media for
professional employment, concerning personal injury or wrongful death
of any person. See § 13-93-111, C.R.S. This Rule 7.3(d) shall not
apply if the lawyer has a family or prior business or professional
relationship with the person or if the communication is issued more
than 30 days after the occurrence of the event for which the legal
representation is being solicited. Any such communication must comply
with the following:
(1) no such communication may be made if the lawyer knows or
reasonably should know that the person to whom the communication is
directed is represented by a lawyer in the matter; and
(2) if a lawyer other than the lawyer whose name or signature is
contained in the communication will actually handle the case or
matter, or if the case or matter will be referred to another lawyer or
law firm, any such communication shall include a statement so advising
the prospective client.
(e) This Rule does not prohibit communications authorized by law or
ordered by a court or other tribunal.
(f) Every communication from a lawyer soliciting professional
employment shall:
(1) include the words “Advertising Material” on the outside envelope,
if any, and at the beginning and ending of any recorded or electronic
communication, unless the recipient of the communication is a person
specified in paragraphs (b)(1), (b)(2) or (b)(3);
(2) not reveal on the envelope or on the outside of a self-mailing
brochure or pamphlet the nature of the person’s legal problem; and
(3) be maintained for a period of five years from the date of
dissemination of the communication, and include a copy or recording of
each such communication and a sample of the envelope, if any, in which
the communication is enclosed, unless the recipient of the
communication is a person specified in paragraphs (b)(1), (b)(2) or
(b)(3).
(g) 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-toperson 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. 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 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 overreaching.
[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 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 overreaching 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 law 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 (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(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. 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 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.
[9] Paragraph (g) 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 (g) 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(c).
