9.2 Solicitation, Referrals, and Specialization (Rules 7.2, 7.3)

Section 9.2: Solicitation, Referrals, and Specialization (Rules 7.2, 7.3)

Introduction to Solicitation

Under the ABA Model Rules, "solicitation" is a specific subcategory of communication about legal services. While advertising is directed to the general public or a broad segment of the population, solicitation is directed to a specific person whom the lawyer knows or reasonably should know needs legal services in a particular matter. The offer of professional employment is initiated by or on behalf of the lawyer. Because solicitation is targeted and direct, it carries a higher potential for abuse, coercion, and overreaching than general advertising. The MPRE tests the strict boundaries between permissible marketing and prohibited solicitation, particularly the ban on live person-to-person contact.

The Prohibition on Live Person-to-Person Solicitation (Rule 7.3(b))

Under ABA Model Rule 7.3(b), a lawyer is strictly prohibited from soliciting professional employment by live person-to-person contact when a significant motive for doing so is the lawyer’s or law firm’s pecuniary gain (i.e., profit).

What is Live Person-to-Person Contact?

"Live person-to-person contact" means in-person, face-to-face, live telephone, or other real-time auditory or visual physical modifications (such as live video calls via FaceTime, Zoom, or Skype) where the target cannot easily ignore or refuse the communication. The key characteristic of live contact is that it is conversational and occurs in real-time, placing the recipient on the spot. Unlike reading an email or a billboard, a person confronted in person or on a phone call must respond immediately, making them vulnerable to pressure and persuasion.

The Pecuniary Gain Motive

The prohibition only applies when a significant motive for the solicitation is the lawyer's financial gain. If a lawyer is offering legal services for free (pro bono), the ban does not apply. For example, if a lawyer working for a civil rights organization (like the NAACP or ACLU) contacts a person in person to offer free representation to challenge a discriminatory housing policy, this is ethically permissible. The First Amendment protects pro bono solicitation because the primary motive is vindicating constitutional rights rather than making a profit.

Exceptions: When Live Solicitation is Permitted

A lawyer is permitted to solicit professional employment by live person-to-person contact if the target falls into one of three exceptions:

1. Other Lawyers: A lawyer may contact another lawyer to solicit business. Lawyers are trained professionals who understand the legal system, know how to evaluate counsel, and are not easily pressured or coerced.
2. Close Relationships: A lawyer may solicit a person who is a family member, a close personal friend, or has a prior business or professional relationship with the lawyer or law firm. The risk of overreaching is minimized because the communication is based on an existing relationship of trust rather than an aggressive sales pitch to a stranger.
3. Experienced Business Users of Legal Services: Added in the 2018 ABA amendments, this exception allows a lawyer to solicit a person who "routinely uses for business purposes the type of legal services offered by the lawyer." For example, a corporate risk manager, an in-house counsel, or a business owner who regularly hires outside lawyers for commercial transactions or litigation is not considered vulnerable to overreaching. Cold-calling these individuals is permitted.

Written, Recorded, and Text-Based Solicitation

Communications that are not "live" are generally permitted under Rule 7.3. This includes letters, emails, text messages, and direct messages (DMs) on social media platforms. Because the recipient can easily ignore, delete, or file away these communications without immediately responding, they do not involve the same coercive pressure as live contact.

Historical and State-Specific Labeling Requirements

Under pre-2018 rules, targeted written communications sent to individuals known to be in need of legal services had to be clearly labeled as "Advertising Material" on the outside envelope and at the beginning and end of any electronic message. The 2018 ABA Model Rules eliminated this blanket labeling requirement, reasoning that modern consumers are highly accustomed to identifying promotional emails and mail. However, many states still retain the "Advertising Material" labeling requirement in their local rules. For the MPRE, it is crucial to understand that under the current ABA Model Rules, no such label is required, but the communication remains subject to general anti-fraud standards.

Universal Prohibitions on Solicitation (Rule 7.3(c))

Even if the contact is otherwise permitted (such as contacting a relative, a lawyer, or using a written email), a lawyer is strictly prohibited from soliciting if:

1. The target of the solicitation has made known to the lawyer a desire not to be solicited. Once a person asks a lawyer to stop contacting them, any further contact is a violation.
2. The solicitation involves coercion, duress, or harassment. Contacting a highly vulnerable person in a way that overwhelms their free will is prohibited.

Paying Others to Recommend a Lawyer (Rule 7.2(b))

Under Rule 7.2(b), a lawyer is prohibited from giving or promising anything of value to a person for recommending the lawyer’s services. This rule prevents lawyers from hiring "runners" or "cappers" to recruit clients at accident scenes, hospitals, or police stations.

Exceptions to the Referral Prohibition

A lawyer may compensate others or enter into agreements in the following narrow circumstances:

1. Advertising Costs: A lawyer may pay the reasonable costs of advertisements or communications permitted by the rules (e.g., paying a billboard company or digital marketing agency).
2. Referral Services and Legal Plans: A lawyer may pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A qualified referral service is one approved by the state bar.
3. Purchase of a Law Practice: A lawyer may pay for a law practice in accordance with Rule 1.17.
4. Reciprocal Referral Agreements: A lawyer may enter into a reciprocal referral agreement with another lawyer or a nonlawyer professional (such as an accountant, doctor, or financial planner). The agreement must meet three strict criteria:
   • It must not be exclusive (both parties must be free to refer to others).
   • The client must be informed of the existence and nature of the agreement.
   • The agreement must not interfere with the lawyer's independent professional judgment, and it should be reviewed periodically.
5. Nominal Appreciation Gifts: A lawyer may give a small, nominal gift (such as a gift basket, a bottle of wine, or a dinner) as an expression of appreciation to a nonlawyer who referred a client. However, the gift must be token, cannot be intended or expected to be compensation for the referral, and cannot be conditioned on referrals or part of an ongoing agreement.

Specialization and Certification (Rule 7.2(c))

A lawyer may state that they practice in specific fields of law. However, a lawyer must not state or imply that they are a "certified specialist" in a particular field unless:

1. The lawyer has been certified as a specialist by an organization approved by an appropriate state authority or accredited by the ABA.
2. The name of the certifying organization is clearly identified in the communication.

For example, saying "I am certified in civil trial advocacy by the National Board of Trial Advocacy" is permitted if true and the certifying organization is named. Simply calling oneself a "specialist" or "certified specialist" without meeting these requirements is misleading and violates Rule 7.1 and 7.2(c).