Learning Outcomes
After reading this article, you will be able to identify what constitutes improper solicitation by direct contact with prospective clients under the Model Rules, distinguish permissible from impermissible solicitation, recognize key exceptions, and apply these principles to MPRE-style scenarios. You will also understand the disciplinary consequences for violations and the rationale behind the rules.
MPRE Syllabus
For the MPRE, you are required to understand the ethical restrictions on how lawyers may seek new clients, especially through direct contact. This article covers:
- The definition of solicitation and live person-to-person contact.
- The prohibition on in-person, live telephone, and real-time electronic solicitation for pecuniary gain.
- The exceptions for certain relationships and circumstances.
- The requirements for written, recorded, and electronic communications.
- The consequences of improper solicitation.
- The rationale for these restrictions and common exam pitfalls.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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Which of the following is generally prohibited as solicitation under the Model Rules?
- Sending a truthful letter to a potential client after a car accident.
- Calling an accident victim you have no prior relationship with to offer legal services for a fee.
- Speaking with a close friend about their legal needs.
- Responding to a specific request for information from a prospective client.
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Which person may a lawyer solicit in person for paid legal services?
- A stranger who was recently injured in an accident.
- Another lawyer.
- An acquaintance who has never used legal services.
- A person who has asked not to be contacted.
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A lawyer pays a nonlawyer to recommend her services to accident victims in person. Is this proper?
- Yes, if the nonlawyer is paid a flat fee.
- Yes, if the lawyer supervises the nonlawyer.
- No, because paying for recommendations is prohibited.
- No, unless the nonlawyer is a family member.
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Which of the following is NOT an exception to the ban on live solicitation for pecuniary gain?
- Soliciting a former client.
- Soliciting a person who routinely uses legal services for business.
- Soliciting a person with no prior relationship.
- Soliciting a close family member.
Introduction
Solicitation—direct contact with prospective clients—is tightly regulated to prevent undue influence, intimidation, and overreaching. The Model Rules prohibit lawyers from seeking paid employment through live, person-to-person contact with individuals who are not lawyers, family, close personal, or prior professional contacts. Understanding these restrictions and their exceptions is essential for the MPRE.
Key Term: Solicitation
A targeted communication initiated by a lawyer offering legal services to a specific person, typically for pecuniary gain.
What Is Solicitation?
Solicitation refers to a lawyer’s attempt to obtain professional employment by initiating contact with a specific individual known to need legal services. The Model Rules distinguish between general advertising and solicitation. General advertising (e.g., billboards, websites) is broadly permitted, while solicitation is subject to strict limits.
Key Term: Live Person-to-Person Contact
In-person, live telephone, or real-time electronic communication where the recipient is subject to direct interaction without time for reflection.
The General Prohibition on Direct Solicitation
A lawyer must not solicit professional employment by live person-to-person contact when a significant motive is the lawyer’s or law firm’s pecuniary gain. This includes:
- In-person meetings.
- Live telephone calls.
- Real-time electronic communications (e.g., video calls).
The prohibition applies even if the lawyer does not mention fees, as long as the motive is paid employment.
Key Term: Pecuniary Gain
The pursuit of financial benefit, such as seeking paid legal work.
Exceptions to the Ban
There are important exceptions where live solicitation is permitted:
- Soliciting another lawyer.
- Soliciting a family member.
- Soliciting a person with whom the lawyer has a close personal or prior professional relationship.
- Soliciting a person who routinely uses legal services for business purposes (e.g., in-house counsel).
If any of these exceptions apply, direct contact is allowed.
Written, Recorded, and Electronic Communications
Solicitation by written, recorded, or electronic means (such as letters or emails) is generally permitted, provided the communication is not false or misleading and does not involve coercion, duress, or harassment. However, if the recipient has made known a desire not to be solicited, further contact is prohibited.
Key Term: Coercion, Duress, or Harassment
Conduct that pressures, intimidates, or annoys a prospective client into accepting legal services.
Prohibited Conduct and Disciplinary Risks
A lawyer is subject to discipline for:
- Soliciting by live person-to-person contact for pecuniary gain outside the exceptions.
- Using agents or nonlawyers to make improper solicitations on the lawyer’s behalf.
- Soliciting anyone who has indicated a desire not to be contacted.
- Engaging in coercion, duress, or harassment.
The rules apply regardless of whether the lawyer is successful in obtaining the client.
Rationale for the Rules
The restrictions exist to protect vulnerable individuals from undue influence at moments of stress or confusion, such as after an accident or during a crisis. The rules aim to ensure that prospective clients can make informed decisions without pressure.
Worked Example 1.1
A lawyer learns of a recent train accident and visits the hospital to offer legal services in person to an injured passenger. The passenger is not a relative, former client, or close friend. Is the lawyer’s conduct proper?
Answer:
No. The lawyer is engaging in live, in-person solicitation for pecuniary gain to a person with whom she has no qualifying relationship. This is prohibited and subjects the lawyer to discipline.
Worked Example 1.2
A lawyer receives a call from a former client asking for help with a new legal issue. The lawyer offers to represent the client and discusses fees during the call. Is this allowed?
Answer:
Yes. Solicitation rules do not prohibit live contact with former clients. The lawyer may discuss representation and fees with a former client.
Worked Example 1.3
A lawyer pays a marketing company to have its employees approach accident victims in person and recommend the lawyer’s services. Is this arrangement permissible?
Answer:
No. Paying nonlawyers to recommend the lawyer’s services through live, in-person contact is prohibited. Both the lawyer and the marketing company’s employees would be in violation.
Exam Warning
The prohibition on live solicitation applies even if the prospective client initiates the conversation. If the lawyer continues the discussion with the intent to secure paid employment, discipline may result unless an exception applies.
Revision Tip
Always check whether the person being solicited falls within an exception. If not, any live, in-person, or real-time solicitation for a fee is likely improper.
Key Point Checklist
This article has covered the following key knowledge points:
- Solicitation is a targeted offer of legal services to a specific person, usually for financial gain.
- Live person-to-person solicitation for pecuniary gain is generally prohibited.
- Exceptions exist for lawyers, family, close personal or prior professional contacts, and regular users of legal services for business.
- Written, recorded, and electronic solicitations are allowed if not misleading or coercive and if the recipient has not opted out.
- Using agents to make improper solicitations is also prohibited.
- Violations can result in disciplinary action, regardless of outcome.
Key Terms and Concepts
- Solicitation
- Live Person-to-Person Contact
- Pecuniary Gain
- Coercion, Duress, or Harassment