Communications About Legal Services · 4-10% of the exam
21.3.3Group and prepaid legal service plans (Rule 7.3(e))
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- Rule 7.3(e) — Group and Prepaid Legal Service Plans
Employers and associations run prepaid legal plans that recruit members through direct outreach. Rule 7.3(e) permits lawyer participation on two black-letter conditions — the plan is not owned or directed by the lawyer, and its outreach reaches persons not known to need legal services in a matter the plan covers — and Comment [9] adds that no lawyer providing services through the plan may make the enrollment contact personally, and that a participating lawyer must reasonably assure the plan's sponsors are complying with Rules 7.1, 7.2 and 7.3(c). Comment [7] runs the other direction: approaching an organization about setting a plan up is not solicitation of the people the plan would one day serve.
Why
Prepaid and group plans put a lawyer within reach of people who would not otherwise go looking for one, and a plan has to recruit members to function at all. The worry is that a lawyer could run such a plan as a solicitation arm, using its enrollment calls to reach the individuals the live-contact ban would otherwise put out of bounds.
Plain English
The plan's own personnel may use live person-to-person contact to enroll members, provided the people they reach are not known at the time of contact to need legal services in a matter the plan covers. A lawyer who would provide legal services through the plan may not make that enrollment contact personally, and may not own or direct the plan.
A lawyer in the plan must also take reasonable steps to satisfy herself that the plan's sponsors are following Rules 7.1, 7.2 and 7.3(c). Approaching an employer or an association about creating a plan is a different thing and is not barred: that conversation is with someone buying legal services for other people, not with a person seeking a lawyer for herself.
Rule
Rule 7.3(e) — Group and Prepaid Legal Service Plans
A lawyer may take part in a prepaid or group legal service plan that recruits members by live person-to-person contact, provided:
The organization operating the plan is not owned or directed by the lawyer; AND
The people the plan reaches are not, at the time of contact, known to need legal services in a matter the plan covers (general enrollment, not targeted individual-need outreach); AND
Comment [9]: the enrollment contact is not made by any lawyer who would be a provider of legal services through the plan, so the participating lawyer personally may not be the one who makes it.
Comment [9] — the participating lawyer's own duty: a lawyer who participates in a legal service plan must reasonably assure that the plan sponsors are in compliance with Rules 7.1, 7.2 and 7.3(c). That duty is comment material; it is not a third black-letter condition.
Comment [7] — setting a plan up: the Rule does not prohibit a lawyer from contacting representatives of an organization or group that may be interested in establishing a group or prepaid plan for its members, insureds, or beneficiaries. That contact is not directed to a person seeking legal services for herself; it is addressed to someone acting in a fiduciary capacity looking for a supplier of legal services for others, and it serves the same purpose as advertising permitted under Rule 7.2.
Both black-letter conditions — plan independence and non-targeted outreach — must be met simultaneously. The plan's own employees may conduct general-enrollment live outreach; they may not direct calls at individuals already known to need a specific covered service.
Example 1
Ex. 1
A union contracts with Vera, a lawyer, to offer members prepaid estate-planning services. Plan employees call union members during open enrollment to describe the benefit generally. When a member later calls Vera directly to ask about enrolling, she takes the call.
Mark who initiates each call here: the plan, then the member. The plan's enrollment calls are permitted: they aren't directed at members already known to need a specific covered service. Vera's response to a member-initiated inquiry isn't solicitation. Both conditions of Rule 7.3(e) are satisfied. Vera's own obligation does not stop there: as a lawyer participating in the plan she must reasonably assure that the plan's sponsors are complying with Rules 7.1, 7.2 and 7.3(c).
Keep the two black-letter conditions in the rule's own words: the organization operating the plan is not owned or directed by the lawyer, and the people it reaches are not, at the time of contact, known to need legal services in a matter the plan covers.
Questions · 1
Q 01ch21-e10
Question 1 of 1 · Rule 7.3(e)
Attorney provides estate-planning services through a prepaid legal plan run by a farmers cooperative. The cooperative owns and directs the plan, and Attorney holds no interest in it and gives it no instructions. During open enrollment the plan staff telephone members to describe the benefit in general terms, and Attorney takes calls from members who ring the office afterward. This year the cooperative claims department drew up a list of nine members whose parents had recently died, and the plan staff telephoned each of those nine to press them to enroll and use the plan for the estate work ahead. Attorney made none of those calls and learned of them a month later. Is it proper for Attorney to keep taking work from the plan?
Keys 1 to 4 choose.