21.3.1Solicitation: definition, constitutional basis, and live-contact prohibition (Rule 7.3)

General advertising reaches the public at large. Solicitation targets an individual the lawyer already believes needs help with a particular matter. That personal outreach creates pressure to decide quickly, often leaves no written record, and gives the recipient little time to evaluate the approach. Rule 7.3's live-contact prohibition isn't limited to face-to-face visits.

A stranger who appears in person, or on a live call, at the moment of an accident or a death holds the advantage. The person approached is shaken, has no time to compare options, and afterward has no record of what was said. Ordinary advertising puts none of that pressure on a reader.

A solicitation is a communication started by or on behalf of the lawyer, directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter, and offering, or reasonably understood as offering, to provide legal services for that matter. What Rule 7.3(b) prohibits is soliciting by live person-to-person contact when a significant motive is the lawyer's or law firm's pecuniary gain, unless the person contacted falls within a listed exception. Live contact covers face-to-face encounters, live telephone calls, and real-time video or audio communications. And Rule 7.3(d) puts an entire category outside the Rule: it does not prohibit communications authorized by law or ordered by a court or other tribunal.

Three elements define what counts as solicitation:

1. Initiated by or on behalf of the lawyer (not a response to the prospect's inquiry);
2. Directed at a specific person the lawyer knows or reasonably should know needs legal services in a particular matter; AND
3. Offers (or can reasonably be understood as offering) to provide legal services for that matter.

All three elements must be present. A billboard, website, or mass-media ad fails the second element and is never solicitation. Meeting all three is not the end of the analysis: under Rule 7.3(d) the Rule does not prohibit communications authorized by law or ordered by a court or other tribunal, so a court-approved notice to potential class members is permitted even though every element is satisfied.

Constitutional basis. A state may categorically ban in-person solicitation for pecuniary gain — the inherent risks of pressure, overreaching, and the absence of a written record justify the prohibition without proof of harm in any individual case (so held in Ohralik v. Ohio State Bar). Where no pecuniary motive drives the contact and the solicitation advances associational or expressive interests, First Amendment protection is stronger and a categorical ban is likely unconstitutional (so held in In re Primus). Comment [5] states the same carve-out in the rule's own terms: paragraph (b) is not intended to prohibit a lawyer from participating in constitutionally protected activities of public or charitable legal-service organizations, or of bona fide political, social, civic, fraternal, employee, or trade organizations whose purposes include providing or recommending legal services to their members or beneficiaries.

Permitted live-contact targets — mnemonic LPR:

Three categories of persons a lawyer MAY reach by live contact when financial gain is a significant motive:

Business-user examples. Look at what the prospect buys in the ordinary course, not at what happened to them last week. An entrepreneur forming an LLC or a small-business owner who regularly needs commercial leases reviewed routinely needs the type of legal services a business-transactions lawyer offers. A cold call to either is permitted under the R (routine-business-user) exception, even if the lawyer and the prospect have never met before.

The exam will suggest only in-person visits are prohibited; that's wrong. A live phone call to a specific prospect for profit crosses the same line as a face-to-face visit.