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this Rule.
See Rule 1.0(d)
“Material”See Rule 1.0(g)
“Reasonable”See Rule 1.0(i)
a. DR 2-101(B) only permits advertising “distributed in or covering the geographic
area or areas in which the lawyer resides or maintains offices.”No such limitation is
imposed by the Proposed Rule.
b. There is no counterpart in the Proposed Rule to DR 2-101(D), which establishes
a special procedure for amendment of DR 2-101(B).
c. There is no counterpart in the Proposed Rule to DR 2-101(E) which requires a
lawyer to approve the advertisement in advance of its publication.
d. The Proposed Rule does not include all the detail set forth in DR 2-101(F) about
the quality of the copy to be provided to the Board of Professional Responsibility.
f. DR 2-101(C)(1) does not require that an office address be included in every
communication.
g. Proposed Rule 7.2(c) is comparable but not identical to DR 2-103(B) which
provides “that [a] lawyer shall not compensate or give anything of value to a person or
organization to recommend or secure his employment by a client, or as a reward for having
made a recommendation resulting in his employment except that he may pay the usual and
reasonable fees or dues charged by any of the organizations listed in DR 2-103(D).”
The proposed is structurally similar to ABA Model Rule 7.2, but differs substantively in the
following respects:
a. In Paragraph (a), “world wide web site” is added to the list of approved media
and the catchall phrase “other forms of communication not directed to specifically
identified recipients” has been added.
b. In Paragraph (b) we have retained Tennessee’s current requirement that the
lawyer provide a copy of the communication to the Board of Professional Responsibility
within three days after publication or broadcast. The Model Rule does not require filing,
publication.
c. Paragraph (c) tracks Model Rule 7.2(c) except that in paragraph (c)(2) we replace
the Model rule reference to “not-for-profit lawyer referral service or legal service
organization” with a more general reference to “a registered intermediary organization.”
There is no counterpart in the Model Rule to proposed Paragraph (c)(3) which permits
sponsorships and contributions to charitable organizations in return for publicity as a
lawyer.
d. Paragraph (d) requires that an advertisement include the name and office address
of a lawyer or law firm responsible for its content. ABA Model Rule 7.2(d) only requires
the inclusion of the name of a lawyer. This issue was addressed in Tennessee Formal
Ethics Opinion 89-F-120.
The Committee amended Paragraph (B)(2) to replace the phrase, “a copy of the revised
communication shall be filed . . . ,”with the phrase, “notice of the changes shall be filed . . . ,” to
address issues raised in connection with websites. To address the same issues, and to allow the
Board of Professional Responsibility the latitude it now exercises to accept such notices
electronically, the second sentence of Comment [6] was added.
In keeping with emerging usage, the phrase “Internet website” was replaced with “world
wide web site.”
Due to changes made in Proposed Rule 7.6, conforming changes were made in Paragraph
(C)(2).
Made
PROPOSED RULE 7.3
SOLICITATION AND OTHER COMMUNICATIONS DIRECTED TO
SPECIFICALLY IDENTIFIED RECIPIENTS
professional employment by in-person, live telephone, or real-time electronic contact from a
prospective client who has not initiated the contact with the lawyer and with whom the lawyer has no
family or prior professional relationship.
electronic contact, or by a writing, recording, telegram, facsimile, computer transmission or other
mode of communication directed to a specifically identified recipient who has not initiated the
contact with the lawyer if:
lawyer; or
influence, intimidation, or fraud; or
(3) a significant motive for the solicitation is the lawyer’s pecuniary gain and the
communication concerns an action for personal injury, worker's compensation or
wrongful death or otherwise relates to an accident or disaster involving the person to
whom the communication is addressed or a member of that person's family, unless the
accident or disaster occurred more than 30 days prior to the mailing or transmission of the
communication or the lawyer has a family or prior professional relationship with the person
solicited.
or dispatch a communication soliciting professional employment from a specifically identified
recipient who has not initiated a contact with the lawyer and with whom the lawyer has no family or
prior professional relationship unless the communication complies with the following requirements:
shall include the words "THIS IS AN ADVERTISEMENT" as follows:
transmission, the required wording shall appear in conspicuous print size on the
outside envelope, if any, and at the beginning and end of the written material. If the
written communication is a self-mailing brochure or pamphlet, the required wording
shall appear on the address panel of the brochure or pamphlet.
the communication for at least five seconds at the beginning and five seconds at the
end of the communication and the required wording of the audio portion of the
video communication shall be presented as required in subsection (c) below.
beginning and end of the communication in a tone, volume, clarity and speed of
delivery at least equivalent to the clearest quality tone, volume, clarity and speed used
elsewhere in the communication.
rules has been approved by the Tennessee Supreme Court or its Board of Professional
Responsibility.
the contract shall be marked "SAMPLE" and the words "DO NOT SIGN" shall appear on
the client signature line.
formal legal documents.
and not by registered, certified, or other forms of restricted delivery, express delivery or
courier.
matter shall comply with the following additional requirements:
prompting the communication;
outside of the envelope (or self-mailing brochure) in which the communication is
delivered; and
OR RETAINED A LAWYER IN THIS MATTER, PLEASE DISREGARD THIS MESSAGE.”
a specific recipient shall be filed with the Board of Professional Responsibility within three
days after the dispatch of the communication. At the same time, the lawyer dispatching the
communication shall also file the name of the person contacted and the person’s address,
telephone, or telecommunication address to which the communication was sent. If
communications identical in content are sent to two or more persons, the lawyer may
comply with this requirement by filing a single copy of the communication together with a
list of the names and addresses of the persons to whom the communication was sent. If the
lawyer periodically sends the identical communication to additional persons, lists of the
additional names and addresses shall be filed with the Board of Professional Responsibility
no less frequently than monthly.
or an announcement of an association or affiliation with another lawyer which complies with the
requirements of Rule 7.5, a lawyer who sends newsletters, brochures and other similar
communications to persons who have not requested the communication or with whom the lawyer
has no family or prior professional relationship shall comply with the requirements of paragraph (c)
above.
[1]There is a potential for abuse inherent in direct in-person or live telephone contact by a
lawyer with a prospective client known to need legal services. These forms of contact between a
lawyer and a specifically targeted recipient subject the layperson to the private importuning of the
trained advocate in a direct interpersonal encounter. The prospective client, who may already 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 overreaching.
[2] This potential for abuse inherent in direct in-person, live telephone, or real-time
electronic solicitation of prospective clients justifies its prohibition, particularly since lawyer
advertising and written and recorded communication permitted under this Rule offer alternative
means of conveying necessary information to those who may be in need of legal services. Written
and recorded communications which may be mailed or electronically transmitted make it possible
for a prospective client to be informed about the need for legal services, and about the qualifications
of available lawyers and law firms, without subjecting the prospective client to direct in-person live
telephone, or real-time electronic persuasion that may overwhelm the client's judgment.
[3] The use of written and recorded communications to transmit information from lawyer to
a specifically identified recipient, rather than direct in-person or live telephone contact, will help to
assure that the information flows cleanly as well as freely. The contents of communications
permitted under this Rule are permanently recorded and filed with the Board of Professional
Responsibility. The contents of direct in-person or live telephone conversations between a lawyer
to a prospective client can be disputed and are not 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.
[4] There is far less likelihood that a lawyer would engage in abusive practices against an
individual with whom the lawyer has a prior personal or professional relationship or where the
lawyer is motivated by considerations other than the lawyer's pecuniary gain. Consequently, the
prohibitions in Rule 7.3(a) and (b)(3) are not applicable in those situations.
[5] But even permitted forms of solicitation can be abused. Thus, any solicitation which
contains information which is false or misleading within the meaning of Rule 7.1, which involves
coercion, duress or harassment within the meaning of Rule 7.3(b)(2), 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 7.3(b)(2), or which occurs within 30 days after an accident of disaster
involving the individual of a member of the individual’s family, is prohibited. Moreover, if after
sending a letter or other communication to a client as permitted by Rule 7.2 the lawyer receives no
response, any further effort to communicate with the prospective client may violate the provisions of
Rule 7.3(b)(1). Communications directed to specifically identified recipients must be identified as
advertisements, may need to be marked with other disclaimers, and cannot be formatted or delivered
in such a manner as to mislead the recipient about the nature of the communication.
[6] This Rule 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 if the lawyer’s purpose is to inform such
entities of the lawyer’s willingness to cooperate with the plan in compliance with Rule 7.6. 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 which
transmitted to the individual are functionally similar to and serve the same purpose as advertising
permitted under Rule 7.2.
[7] The requirements in Rule 7.3(c) that certain communications be marked as
advertisements and contain other disclaimers do 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.
[8] Rule 7.3 is not intended to apply to communications such as general interest newsletters
or announcements of association or affiliation that comply with Rule 7.5. Other types of
newsletters, brochures and similar communications sent to specifically identified recipients must
comply with Rule 7.3.
See Rule 1.0(e)
“Known”See Rule 1.0(f)
“Material”See Rule 1.0(g)
Paragraph (a) differs from DR 2-104 in that it only prohibits in-person, telephonic, and real-
time electronic solicitation. All other targeted communications are governed by paragraph (b). DR
2-104(A)(2) extends the prohibition against “solicitation” to include not only in-person, live
telephonic, and real-time electronic contact but also any “computer-on-line transmission directed to
a specific recipient.”The Committee believes that, with exception of real-time contact (e.g.,
chatroom or instant messaging), on-line communication initiated by a lawyer should be treated as a
written communication.
Paragraph (b) includes the prohibition in DR 2-104(C)(1)(a) against written communication
within 30 days of an accident.
There is no counterpart to Paragraph (d) in the current Disciplinary Rules. The Committee
thought this issue needed to be addressed because of the increased use by firms of newsletters as a
vehicle for publicizing the firm’s practice.
Paragraph (a) is identical to ABA Model Rule 7.3(a) except that the Proposed Rule makes it
clear that a lawyer may speak with a prospective client who has initiated the conversation about the
lawyer’s prospective employment.