(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 corner 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 June 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 the corresponding ABA model rule, ABA Model Rule 7.3.

  1. First, ABA Model Rule 7.3(a)(1) “Solicitation” or “solicit” denotes a communication initiated by or on behalf of a lawyer or law firm that is directed to solicit legal business from another a specific person the lawyer. a lawyer to solicit legal business from another 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.

 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; or

(2) A person who has a family, close personal, or prior business or professional relationship with the lawyer; or law firm.

 (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 (ab), 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 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.

Comments to ABA Model Rule 7.3

[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. 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 over-reaching.

[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 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 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 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(b)(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 (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 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

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 r. 7.4(a) (2009); see also Ohralik v. Ohio State Bar Ass’n, 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); La. State Bar Ass’n 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” 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. r. 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 March 3, 2019.