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Rule7.3. Solicitation of Clients.

(a)A lawyer shall not by in-person, livetelephone or real-time electronic contact solicit professional employment froma prospective client when a significant motive for the lawyer's doing so is thelawyer's pecuniary gain, unless the person contacted:

(a)(1)is a lawyer;

(a)(2)has a family, close personal, or prior professional relationship with thelawyer, or

(a)(3)is unable to make personal contact with a lawyer and the lawyer?s contact withthe prospective client has been initiated by a third party on behalf of theprospective client.

(b)A lawyer shall not solicit professional employment by written, recorded orelectronic communication or by in-person, livetelephone or real-time electronic contact even when not otherwise prohibited byparagraph (a), if:

(b)(1)the target of the solicitation has made known to the lawyer a desire not to besolicited by the lawyer; or

(b)(2)the solicitation involves coercion, duress or harassment.

(c)Every written, recorded or electronic communication from a lawyer solicitingprofessional employment from anyone known to be in need of legal services in aparticular matter shall include the words "Advertising Material" onthe outside envelope, if any, and at the beginning of any recorded orelectronic communication, unless the recipient of the communication is a personspecified in paragraphs (a)(1) or (a)(2). For the purposes of this subsection,"written communication" does not include advertisement through publicmedia, including but not limited to a telephone directory, legal directory,newspaper or other periodical, outdoor advertising, radio, television orwebpage.

(d)Notwithstanding the prohibitions in paragraph (a), a lawyer may participatewith a prepaid or group legal service plan operated by an organization notowned or directed by the lawyer that uses in-person or other real-time communicationto solicit memberships or subscriptions for the plan from persons who are notknown to need legal services in a particular matter covered by the plan.

Comment

[1]A solicitation is a targeted communication initiated by the lawyer that isdirected to a specific person and that offers to provide, or can reasonably beunderstood as offering to provide, legal services. In contrast, a lawyer?scommunication typically does not constitute a solicitation if it is directed tothe general public, such as through a billboard, an Internet banneradvertisement, a website or a television commercial, or if it is in response toa request for information or is automatically generated in response to Internetsearches.

[2] Thereis a potential for abuse when a solicitation involves direct in-person, livetelephone or real-time electronic contact by a lawyer with ?someone known to need legal services. Theseforms of contact subject a person to the private importuning of the trainedadvocate in a direct interpersonal encounter. The person, who may already feeloverwhelmed by the circumstances giving rise to the need for legal services,may find it difficult fully to evaluate all available alternatives withreasoned judgment and appropriate self-interest in the face of the lawyer'spresence and insistence upon being retained immediately. The situation isfraught with the possibility of undue influence, intimidation, andover-reaching.

[3]This potential for abuse inherent in direct in-person, live telephone orreal-time electronic solicitation justifies its prohibition, particularly sincelawyers have alternative means of conveying necessary information to those whomay be in need of legal services. In particular, communications can be mailedor transmitted by email or other electronic means that do not involve real-timecontact and do not violate other laws governing solicitations. These forms ofcommunications and solicitations make it possible for the public to be informedabout the need for legal services, and about the qualifications of availablelawyers and law firms, without subjecting the public to direct in-person, livetelephone or real-time electronic persuasion that may overwhelm a person?s judgment.

[4] Theuse of general advertising and written, recorded or electronic communicationsto transmit information from lawyer to the public, rather than direct in-personor other real-time communications, will help to ensure that the informationflows cleanly as well as freely. The contents of advertisements and communicationspermitted under Rule 7.2 can be permanently recorded so that they cannot bedisputed and may be shared with others who know the lawyer. This potential forinformal review is itself likely to help guard against statements and claimsthat might constitute false and misleading communications in violation of Rule7.1. The contents of direct in-person, live telephone or real-time electroniccontact 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 andmisleading.

[5] Thereis far less likelihood that a lawyer would engage in abusive practices againsta former client, or a person with whom the lawyer has a close personal orfamily relationship, or where the lawyer has been asked by a third party tocontact a prospective client who is unable to contact a lawyer, for examplewhen the prospective client is incarcerated and is unable to place a call, oris mentally incapacitated and unable to appreciate the need for legal counsel.Nor is there a serious potential for abuse in situations where the lawyer ismotivated by considerations other than the lawyer's pecuniary gain, or when theperson contacted is also a lawyer. This rule is not intended to prohibit alawyer from applying for employment with an entity, for example, as in-housecounsel. ?Consequently, the generalprohibition in Rule 7.3(a) and the requirements of Rule 7.3(c) are notapplicable in those situations. Also, paragraph (a) is not intended to prohibita lawyer from participating in constitutionally protected activities of publicor charitable legal-service organizations or bona fide political,social, civic, fraternal, employee or trade organizations whose purposesinclude providing or recommending legal services to their members orbeneficiaries.

[5a]Utah?s Rule 7.3(a) differs from the ABA Model Rule by authorizing in-person orother real-time contact by a lawyer with a prospective client when thatprospective client is unable to make personal contact with a lawyer, but athird party initiates contact with a lawyer on behalf of the prospective clientand the lawyer then contacts the prospective client.

[6] Buteven permitted forms of solicitation can be abused. Thus, any solicitationwhich contains information that is false or misleading within the meaning ofRule 7.1, that involves coercion, duress or harassment within the meaning ofRule 7.3(b)(2), or that involves contact with someone who has made known to thelawyer a desire not to be solicited by the lawyer within the meaning of Rule7.3(b)(1) is prohibited. Moreover, if after sending a letter or othercommunication as permitted by Rule 7.2 the lawyer receives no response, any furthereffort to communicate with the recipient of the communication may violate theprovisions of Rule 7.3(b).

[7] ThisRule is not intended to prohibit a lawyer from contacting representatives oforganizations or groups that may be interested in establishing a group orprepaid legal plan for their members, insureds, beneficiaries or other thirdparties for the purpose of informing such entities of the availability of andthe details concerning the plan or arrangement which the lawyer or lawyer?sfirm is willing to offer. This form of communication is not directed to peoplewho are seeking legal services for themselves. Rather, it is usually addressedto an individual acting in a fiduciary capacity seeking a supplier of legalservices for others who may, if they choose, become prospective clients of thelawyer. Under these circumstances, the activity which the lawyer undertakes incommunicating with such representatives and the type of information transmittedto the individual are functionally similar to and serve the same purpose asadvertising permitted under Rule 7.2.

[8] Therequirement in Rule 7.3(c) that certain communications be marked"Advertising Material" does not apply to communications sent inresponse to requests of potential clients or their spokespersons or sponsors.General announcements by lawyers, including changes in personnel or officelocation, do not constitute communications soliciting professional employmentfrom a client known to be in need of legal services within the meaning of thisRule.

[8a]Utah Rule 7.3(c) requires the words "Advertising Material" to bemarked on the outside of an envelope, if any, and at the beginning of anyrecorded or electronic communication, but not at the end as the ABA Model Rulerequires. Lawyer solicitations in public media that regularly containadvertisements do not need the " Advertising Material" notice becausepersons who view or hear such media usually recognize the nature of thecommunications.

[9] Paragraph(d) of this Rule permits a lawyer to participate with an organization that usespersonal contact to solicit members for its group or prepaid legal serviceplan, provided that the personal contact is not undertaken by any lawyer whowould be a provider of legal services through the plan. The organization mustnot be owned by or directed (whether as manager or otherwise) by any lawyer orlaw firm that participates in the plan. For example, paragraph (d) would notpermit a lawyer to create an organization controlled directly or indirectly bythe lawyer and use the organization for the in-person or telephone, liveperson-to-person contacts or other real-time electronic solicitation of legalemployment of the lawyer through memberships in the plan or otherwise. Thecommunication permitted by these organizations also must not be directed to aperson known to need legal services in a particular matter, but is to bedesigned to inform potential plan members generally of another means ofaffordable legal services. Lawyers who participate in a legal service plan mustreasonably assure that the plan sponsors are in compliance with Rules 7.1, 7.2and 7.3(b). See Rule 8.4(a).