Supreme Court Rules - Rule 4 - Rules Governing the Missouri Bar and the Judiciary - Rules of Professional Conduct: Information About Legal Services

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Supreme Court Rules

		Section/Rule:	4- 7. 3
Subject:	Rule 4 - Rules Governing the Missouri Bar and the Judiciary - Rules of Professional Conduct	Publication / Adopted Date:	September 28, 1993
Topic:	Information About Legal Services - Direct Contact with Prospective Clients	Revised / Effective Date:	July 1, 2010

RULE 4-7.3: DIRECT CONTACT WITH PROSPECTIVE CLIENTS

This Rule 4-7.3 applies to in-person and written solicitations by a lawyer with persons known to need legal services of the kind provided by the lawyer in a particular matter for the purpose of obtaining professional employment.

(a) In-person solicitation. A lawyer may not initiate the in-person, telephone, or real time electronic solicitation of legal business under any circumstance, other than with an existing or former client, lawyer, close friend, or relative.

(b) Written Solicitation. A lawyer may initiate written solicitations to an existing or former client, lawyer, friend, or relative without complying with the requirements of this Rule 4-7.3(b). Written solicitations to others are subject to the following requirements:

(1) any written solicitation by mail shall be plainly marked “ADVERTISEMENT” on the face of the envelope and all written solicitations shall be plainly marked “ADVERTISEMENT” at the top of the first page in type at least as large as the largest written type used in the written solicitation;

(2) the lawyer shall retain a copy of each such written solicitation for two years. If written identical solicitations are sent to two or more prospective clients, the lawyer may comply with this requirement by retaining a single copy together with a list of the names and addresses of persons to whom the written solicitation was sent;

(3) each written solicitation must include the following:

“Disregard this solicitation if you have already engaged a lawyer in connection with the legal matter referred to in this solicitation. You may wish to consult your lawyer or another lawyer instead of me (us). The exact nature of your legal situation will depend on many facts not known to me (us) at this time. You should understand that the advice and information in this solicitation is general and that your own situation may vary. This statement is required by rule of the Supreme Court of Missouri;”

(4) written solicitations mailed to prospective clients shall be sent only by regular United States mail, not registered mail or other forms of restricted or certified delivery;

(5) written solicitations mailed to prospective clients shall not be made to resemble legal pleadings or other legal documents;

(6) any written solicitation prompted by a specific occurrence involving or affecting the intended recipient of the solicitation or family member shall disclose how the lawyer obtained the information prompting the solicitation;

(7) a written solicitation 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;

(8) if a lawyer knows that a lawyer other than the lawyer whose name or signature appears on the solicitation will actually handle the case or matter or that the case or matter will be referred to another lawyer or law firm, any written solicitation concerning a specific matter shall include a statement so advising the potential client; and

(9) a lawyer shall not send a written solicitation regarding a specific matter if the lawyer knows or reasonably should know that the person to whom the solicitation is directed is represented by a lawyer in the matter.

(c) A lawyer shall not send, nor knowingly permit to be sent, on behalf of the lawyer, the lawyer’s firm, the lawyer’s partner, an associate, or any other lawyer affiliated with the lawyer or the lawyer’s firm a written solicitation to any prospective client for the purpose of obtaining professional employment if:

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

(2) the written solicitation involves coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence;

(3) the written solicitation contains a false, fraudulent, misleading, or deceptive statement or claim or makes claims as to the comparative quality of legal services, unless the comparison can be factually substantiated, or asserts opinions about the liability of the defendant or offers assurances of client satisfaction;

(4) the written solicitation concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person solicited or a relative of that person if the accident or disaster occurred less than 30 days prior to the solicitation or if the lawyer knows or reasonably should know that the physical, emotional, or mental state of the person solicited makes it unlikely that the person would exercise reasonable judgment in employing a lawyer; or

(5) the written solicitation vilifies, denounces or disparages any other potential party.

(d) The provisions of Rule 4-7.3 shall not apply to services provided by a not-for-profit organization funded in whole or in part by the Legal Services Corporation established by 42 U.S.C. Section 2996(b) or to pro bono services provided free of charge by a not-for-profit organization, a court annexed program, a bar association, or an accredited law school.

(Adopted Aug. 7, 1985, eff. Jan. 1, 1986. Amended June 21, 1994, eff. Jan. 1, 1995; Dec. 19, 1995, eff. July 1, 1996; Sept. 19, 2005, eff. Jan. 1, 2006; March 1, 2007, ef. July 1, 2007; Nov. 25, 2009, eff. July 1, 2010.)

COMMENT

[1] There is a potential for abuse inherent in direct in-person, live telephone, or real-time electronic contact by a lawyer with a prospective client known to need legal services. These forms of contact between a lawyer and a prospective client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter. The prospective client, who already may 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.

[2] The use of general advertising and written, recorded, or electronic communications to transmit information from lawyer to prospective client, 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 4-7.2 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 4-7.1. The contents of direct in-person, live telephone or real-time electronic conversations between a lawyer and a prospective client 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.

[3] There is far less likelihood that a lawyer would engage in abusive practices against an individual who is a former client, or 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 4-7.3(a) and the requirements of Rule 4-7.3(b) are not applicable in those situations. Also, Rule 4-7.3(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 its members or beneficiaries.

[4] But even permitted forms of solicitation can be abused. Thus, any solicitation that contains information that is false or misleading within the meaning of Rule 4-7.1, which involves coercion, duress, or harassment within the meaning of Rule 4-7.3(c)(2), or which involves contact with a prospective client who has made known to the lawyer a desire not to be solicited by the lawyer within the meaning of Rule 4-7.3(c)(1) is prohibited.

[5] This Rule 4-7.3 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 that the lawyer or lawyer's firm is willing to offer. This form of communication is not directed to a prospective client. 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 that 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 4-7.2.

[6] The requirement in Rule 4-7.3(b)(1) that certain communications be marked "Advertisement" 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 4-7.3.

SUPPLEMENTAL MISSOURI COMMENT

Rule 4-7.3(a) is similar to but less restrictive than Iowa Disciplinary Rule DR 2-101(4). The United States Supreme Court in the case of Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978), held that a state could categorically ban all in-person solicitation.

Rule 4-7.3(b)(1) and (b)(2) are from Rule 4-7.3 of the Rhode Island rules of the court. Rule 4-7.3(b)(9), (c)(1), and (c)(2) are from Rhode Island Rule 4-7.3(b)(2)(a), (b), and (c).

Rule 4-7.3(c)(3) is taken in part from suggestions found in Shapero v. Kentucky Bar Assn., 486 U. S. 466 (1988), which condemned written solicitation that unduly emphasized trivial and uninformative facts or that stated that “the liability of the defendants is clear” or that made claims about the quality of legal services.

Rule 4-7.3(c)(4) is taken from South Carolina Appellate Court Rule 4-7.3(b)(3) and is similar to Florida’s 30-day ban on direct mailing of solicitations to personal injury and wrongful death clients. The Florida 30-day moratorium was upheld in Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995). The Supreme Court held that the Florida rule did not violate the lawyer’s first amendment rights because it served a legitimate state interest in protecting the privacy and sensibilities of accident victims and helped preserve the integrity of the bar and the public’s perception of the administration of justice.

Rule 4-7.3(b)(3) to (8) are taken from South Carolina Appellate Court Rule 7.3(c)(2) and (3), except South Carolina Rule 7.3(c)(3)(i) was eliminated.

The requirements of Rule 4-7.3(b) apply to written solicitations disseminated in Missouri.