Rule 7.4. Direct Contact With Prospective Clients

(a) Solicitation. Except as provided in subdivision (b) of this Rule, a lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no family or prior lawyer-client relationship, in person, by person to person verbal telephone contact, through others acting at the lawyer’s request or on the lawyer’s behalf or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. A lawyer shall not permit employees or agents of the lawyer to solicit on the lawyer’s behalf. A lawyer shall not enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this Rule. The term “solicit” includes contact in person, by telephone, telegraph, or facsimile, or by other communication directed to a specific recipient and includes (i) any written form of communication directed to a specific recipient and not meeting the requirements of subdivision (b) of this Rule, and (ii) any electronic mail communication directed to a specific recipient and not meeting the requirements of subdivision (c) of Rule 7.6. For the purposes of this Rule 7.4, the phrase “prior lawyer-client relationship” shall not include relationships in which the client was an unnamed member of a class action.

(b) Written Communication Sent on an Unsolicited Basis.

(1) A lawyer shall not send, or knowingly permit to be sent, on the lawyer’s behalf or on behalf of the lawyer’s firm or partner, an associate, or any other lawyer affiliated with the lawyer or the lawyer’s firm, an unsolicited written communication directly or indirectly to a prospective client for the purpose of obtaining professional employment if:

(A) the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than thirty days prior to the mailing of the communication;

(B) it has been made known to the lawyer that the person does not want to receive such communications from the lawyer;

(C) the communication involves coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence;

(D) the communication contains a false, misleading or deceptive statement or claim or is improper under subdivision (c)(1) of Rule 7.2; or

(E) the lawyer knows or reasonably should know that the physical, emotional, or mental state of the person makes it unlikely that the person would exercise reasonable judgment in employing a lawyer.

(2) Unsolicited written communications to prospective clients for the purpose of obtaining professional employment are subject to the following requirements:

(A) Unsolicited written communications to a prospective client are subject to the requirements of Rule 7.2.

(B) In instances where there is no family or prior lawyer-client relationship, a lawyer shall not initiate any form of targeted solicitation, whether a written or recorded communication, of a person or persons known to need legal services of a particular kind provided by the lawyer in a particular matter for the purpose of obtaining professional employment unless such communication complies with the requirements set forth below and is not otherwise in violation of these Rules:

(i) Such communication shall state clearly the name of at least one member in good standing of the Association responsible for its content.

(ii) The top of each page of such written communication and the lower left comer of the face of the envelope in which the written communication is enclosed shall be plainly marked “ADVERTISEMENT” in print size at least as large as the largest print used in the written communication. If the written communication is in the form of a self-mailing brochure or pamphlet, the “ADVERTISEMENT’ mark shall appear above the address panel of the brochure or pamphlet and on the inside of the brochure or pamphlet. Written communications solicited by clients or prospective clients, or written communications sent only to other lawyers need not contain the “ADVERTISEMENT” mark.

(C) Unsolicited written communications mailed to prospective clients shall not resemble a legal pleading, notice, contract or other legal document and shall not be sent by registered mail, certified mail or other forms of restricted delivery.

(D) If a lawyer other than the lawyer whose name or signature appears on the communication will actually handle the case or matter, any unsolicited written communication concerning a specific matter shall include a statement so advising the client.

(E) Any unsolicited written communication prompted by a specific occurrence involving or affecting the intended recipient of the communication or a family member of that person shall disclose how the lawyer obtained the information prompting the communication.

(F) An unsolicited written communication seeking employment by a specific prospective client in a specific matter shall not reveal on the envelope, or on the outside of a self-mailing brochure or pamphlet, the nature of the client’s legal problem.

Background

The Louisiana Supreme Court adopted this rule on June 26, 2008. It became effective October 1, 2009. In the wake of the Fifth Circuit’s 2011 declaration that some of Louisiana’s lawyer advertising rules were unconstitutional, the Louisiana Supreme Court amended this rule on Jun 22, 2011. Louisiana Rule 7.4 is based on ABA Model Rule of Professional Conduct 7.3 (2002). However, Louisiana Rule 7.4 differs significantly from ABA Model Rule 7.3.

  1. First, ABA Model Rule 7.3(a)(1) specifically permits a lawyer to solicit legal business from another lawyer. See Model Rules of Prof’l Conduct R. 7.3(a)(1) (2002).
  2. Second, paragraph (b) of this rule–which relates only to written communications sent on an unsolicited basis and not to in-person communications–is similar to Model Rule 7.3(c), with several additional requirements. The Louisiana Rule requires that a targeted communication identify at least one Louisiana lawyer responsible for its content (7.4(b)(2)(b)(i)); the Louisiana Rule requires that a written communication not resemble a legal document and not be sent via restricted delivery (7.4(b)(2)(C)). The Louisiana Rule sets forth detailed specifications relating to the required notice that the communication is an “advertisement” (7.4(b)(2)(B)(ii)). The Louisiana Rule imposes a 30-day waiting period for written communications relating to personal-injury matters (7.4(b)(1)(A)). And finally, the Louisiana Rule requires that a lawyer disclose how the lawyer “obtained the information prompting the communication” if it was made in a response to a “specific occurrence involving or affecting the intended recipient.” La. Rules of Professional Conduct Rule 7.4(b)(2)(E) (2009).
  3. Third, Louisiana Rule 7.4(b)(1)(C) additionally prohibits a Louisiana lawyer from engaging in solicitations involving “fraud, overreaching, intimidation or undue influence.” La. Rules of Professional Conduct 7.4(b)(1)(C) (2009).
  4. Fourth, Model Rule 7.3(d) contains a paragraph not found in the Louisiana Rules. Namely, Model Rule 7.3(d) permits a lawyer to participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer even though that plan may solicit clients not known to need legal services for a particular matter. See Model Rule of Prof’l Conduct R. 7.3(d) (2002); Allison v. La. State Bar Ass’n, 362 So. 2d 489 (La. 1978).

ABA Model Rule 7.3: Solicitation of Clients (2012)

(a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted:

(1) is a lawyer; or

(2) has a family, close personal, or prior professional relationship with the lawyer.

(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; or

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

(c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from anyone known to be in need of legal services in a particular matter shall 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 (a)(1) or (a)(2).

(d) Notwithstanding the prohibitions in paragraph (a), 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 in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.

Comments to ABA Model Rule 7.3

[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] There is a potential for abuse when a solicitation involves direct in-person, live telephone or real-time electronic contact by a lawyer with someone known to need legal services. These forms of contact subject 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 being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and over-reaching.

[3] This potential for abuse inherent in direct in-person, live telephone or real-time electronic solicitation justifies its prohibition, particularly since lawyers have alternative means of conveying necessary information to those who may be in need of legal services. In particular, communications can be mailed or transmitted by email or other electronic means that do not involve real-time contact and do not violate other laws governing solicitations. These forms of communications and solicitations 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 direct in-person, telephone or real-time electronic persuasion that may overwhelm a person’s judgment.

[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] There is far less likelihood that a lawyer would engage in abusive practices against a, former client, or a person with whom the lawyer has close personal or family 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. Consequently, the general prohibition in Rule 7.3(a) and the requirements of Rule 7.3(c) are not applicable in those situations. Also, 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 their members or beneficiaries.

[6] But even permitted forms of solicitation can be abused. Thus, any solicitation which contains information which is false or misleading within the meaning of Rule 7.1, which involves coercion, duress or harassment within the meaning of Rule 7.3(b)(2), or which 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(b)(1) is prohibited. Moreover, if after sending a letter or other communication as permitted by Rule 7.2 the lawyer receives no response, any further effort to communicate with the recipient of the communication may violate the provisions of Rule 7.3(b).

[7] This Rule is not intended to 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] The requirement in Rule 7.3(c) that certain communications be marked “Advertising Material” does not apply to communications sent in response to requests of potential clients or their spokespersons or sponsors. General announcements by lawyers, including changes in personnel or office location, do not constitute communications soliciting professional employment from a client known to be in need of legal services within the meaning of this Rule.

[9] Paragraph (d) of this Rule permits a lawyer to participate with an organization which uses personal contact to solicit 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 (d) would not permit a lawyer to create an organization controlled directly or indirectly by the lawyer and use the organization for the in-person or telephone 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 is to 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(b). See 8.4(a).

Annotations

In-Person Solicitation

Paragraph (a) of this rule prohibits a lawyer from soliciting employment from an unrelated, new client either in person or by telephone when “a significant motive” for doing so is pecuniary gain. La. Rules of Prof’l Conduct Rule 7.4(a) (2009); see also Ohralik v. Ohio State Bar, 436 U.S. 447, 449 (1978); In re Jones, 952 So.2d 673 (La. 2007) (disbarring lawyer for, among other things, soliciting at a funeral home where parents of a man killed by police were making funeral arrangements). The rule prohibits such in-person or telephone solicitation whether or not the lawyer knows that the person needs legal services. Although a lawyer may call prospective clients for purposes other than to “solicit professional employment,” the line between a call that is merely informational and one that constitutes impermissible solicitation is sometimes difficult to draw. See In re D’Amico, 668 So. 2d 730, 733 (La. 1996). The Louisiana Supreme Court has “consistently found solicitation to be a very serious professional violation.” E.g., In re Broome, 815 So. 2d 1, 5 (La. 2002) (citing In re D’Amico, 688 So. 2d 730 (La. 1996); LSBA v. St. Romain, 560 So. 2d 820 (La. 1990)); In re Goff, 837 So. 2d 1201,1206 (La. 2003) (“Unquestionably, engaging in runner-based solicitation is one of the most serious professional violations a lawyer may commit.”). Given the seriousness of client solicitation, the court has not hesitated to disbar lawyers for egregious violations of this rule. See, e.g., In re Sledge, 859 So. 2d 671 (La. 2003); In re Cuccia, 752 So. 2d 796 (La. 1999).

This rule does not prohibit noncoercive in-person or telephonic solicitation that is driven by nonpecuniary motives. Thus, for example, this rule does not prohibit, and the United States Constitution protects, solicitation to pursue social, political or ideological goals. See, e.g., In re Primus, 436 U.S. 412, 426-31 (1978).

Written Targeted Solicitation

Paragraph (b) of this rule sets forth detailed prerequisites for written communications sent on an unsolicited basis. See La. Rules of Prof’l Conduct R. 7.4(b) (2009); see also Shapero v. Ky. Bar Ass’n, 486 U.S. 466 (1988); In re Schmidt, 976 So.2d 1267 (La. 2008). As to all written targeted communications, the communication must state the name of at least one Louisiana lawyer responsible for the communication. La. Rules of Prof’l Conduct R. 7.4(b)(2)(B)(i) (2009). The lawyer also (1) must ensure that the writing does not resemble a legal document and is not sent via restricted delivery (7.4(b)(2)(C) (2009)), (2) must mark the term “advertisement” on the writing in specified places (7.4(b)(2)(B)(ii) (2009)), (3) must refrain from sending the writing until 30 days after any personal-injury or “accident” with which the writing concerns (7.4(b)(1)(A) (2009)) and, (4) must “disclose how the lawyer obtained the information prompting the communication,” if the targeted communication was “prompted by a specific occurrence involving or affecting the intended recipient” (7.4(b)(2)(E) (2009).

Unwanted and Impermissible Solicitation

Paragraph (b)(1)(B) prohibits a lawyer from any otherwise permissible solicitation if the prospective client has told the lawyer that he or she is not interested in being solicited. La. Rules of Prof’l Conduct R. 7.4(b)(1)(B) (2009). Furthermore, paragraph (b)(1)(C) prohibits any solicitation involving “coercion, duress, harassment, fraud, overreaching, intimidation or undue influence.” Id. Rule 7.4(b)(1)(C).

Federal Law Regarding Solicitation After Air Crash

Note that 49 U.S.C. §1136(g)(2) prohibits a lawyer from engaging in certain unsolicited communications after an air crash: In the event of an accident involving an air carrier providing interstate or foreign air transportation and in the event of an accident involving a foreign air carrier that occurs within the United States, no unsolicited communication concerning a potential action for personal injury or wrongful death may be made by a lawyer (including any associate, agent, employee, or other representative of a lawyer) or any potential party to the litigation to an individual injured in the accident, or to a relative of an individual involved in the accident, before the 45th day following the date of the accident.

Disciplinary Sanctions

Absent aggravating or mitigating circumstances, the following sanctions are generally appropriate in cases involving violations of Rule 7.4: disbarment, when the lawyer knowingly engages in conduct that is a violation of a duty owed to the profession with the intent to obtain a benefit for the lawyer or another, and causes serious or potentially serious injury to a client, the public, or the legal system; suspension, when the lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system; reprimand, when the lawyer negligently engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system; and, admonition, when the lawyer engages in an isolated instance of negligence that is a violation of a duty owed to the profession, and causes little or no actual or potential injury to a client, the public or the legal system. See ABA Stds. for Imposing Lawyer Sanctions stds. 7.0-7.4 (1992).

Notes

This page was updated on August 7, 2013.