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[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.
or
live telephone, or real-time
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-personor
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)(1
[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)(3
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
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
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 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.
Paragraph (b) tracks ABA Model Rule 7.3(b) except that we have added as subparagraph
(b)(3) the prohibition in DR 2-104(C)(1)(a) against written communication within 30 days of an
accident.
Paragraph (c) imposes numerous restrictions not imposed by Model Rule in that ABA
Model Rule 7.3(c), which more simply requires that written solicitations sent to persons known to
be in need of legal service in a particular matter include the word “advertising material” on the
outside of the envelope.
There is no counterpart to Paragraph (d) in ABA Model Rule 7.3. 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.
There is no counterpart in the Proposed Rule to ABA Model Rule 7.3(D), which permits
lawyers to participate with a prepaid legal service plan which uses in-person or telephonic
solicitation to sell memberships or subscriptions in the plan so long as there is no solicitation of
persons known to be in need of legal services in a particular matter. This issue is addressed in
Proposed Rule 7.6 which deals comprehensively with intermediary organizations.
Made
On its own motion, the Committee recommends that the prohibition on in-person and live
telephone solicitation be extended to real-time electronic contact, such as occurs in a “chatroom” or
with instant messaging. The Committee believes that there is a sufficient risk of overreaching in
such situations to warrant this prohibition. The ABA Ethics 2000 Commission has similarly
recommended that real-time electronic solicitation be banned.
PROPOSED RULE 7.4
COMMUNICATION OF FIELDS OF PRACTICE
particular fields of law.
a specialist, specializes or is certified or recognized as a specialist in a particular field of law.
Trademark Office may use the designation "Patent Attorney" or a substantially similar
designation.
Supreme Court or its Commission on Continuing Legal Education and Specialization may
state that the lawyer “is certified as a specialist in [field of law] by the Tennessee Supreme
Court.”A lawyer so certified may also state that the lawyer is certified as a specialist in that
field of law by an organization recognized or accredited by the Tennessee Supreme Court or
its Commission on Continuing Legal Education and Specialization as complying with its
requirements, provided the statement is made in the following format:“[Lawyer] is
certified as a specialist in [field of law] by [organization].”
[1] This Rule permits a lawyer to indicate areas of practice in communications about the
lawyer's services. If a lawyer practices only in certain fields, or will not accept matters in a specified
field or fields, the lawyer is permitted to so indicate.
[2]However, a lawyer may not communicate that the lawyer is a “specialist,” practices a
“speciality,” “specializes in” a particular field, or that the lawyer has been recognized or certified
as a specialist in a particular field of law, except as provided by this Rule. Recognition of
specialization in patent matters is a matter of long-established policy of the Patent and Trademark
Office, as reflected in paragraph (c).
[3]Paragraph (d) permits a lawyer to communicate that he or she is a specialist or has been
certified or recognized as a specialist only when the lawyer has been so certified or recognized by
the Supreme Court or its Commission on Continuing Legal Education and Specialization. The
specialized ability and experience than is suggested by general licensure to practice law.
See Rule 1.0(l)
Under paragraph (a), contrary to DR 2-101(C), no disclaimer of certification is required if
the lawyer does no more than communicate that the lawyer is practicing or limiting his or her
practice to particular fields of law.
Paragraph (d) permits lawyers who are certified as a specialist by the Commission on
Continuing Legal Education and Specialization to “beef up” their claim and state that they certified
by the Tennessee Supreme Court.
Paragraph (b) differs from ABA Model Rule 7.4 to the extent that it prohibits the lawyer
from claiming that he or she is a specialist or specializes in an area of law unless the lawyer is
certified as a specialist. The ABA Model Rule permits a claim that one is a specialist so long as the
claim is not false or misleading.
Paragraph (c) incorporates the ABA Model Rule exception for patent lawyers, but does not
include the exception for admiralty lawyers.
The Committee added language to Paragraph (b) more clearly prohibiting statements that a
lawyer is “certified or recognized as a specialist.”
At the urging of the Tennessee Trial Lawyers Association and a committee of the Board or
Professional Responsibility, the Committee amended paragraph (d) by adding the second sentence,
permitting statements that a lawyer is certified or recognized as a specialist by national accrediting
organizations approved by the Tennessee Supreme Court or its Commission on Continuing Legal
Education and Specialization.
Made
The Commission on Continuing Legal Education and Specialization has vigorously
defended the current requirement that lawyers who are not certified as a specialist include a
disclaimer to that effect whenever they advertise a practice area, and the Court has recently upheld
the constitutionality of the disclaimer requirement. The Commission, however, has acknowledged
that it has heard considerable opposition to the requirement, in particular the length of the required
statement and the burden in some cases of having to disclaim certification in multiple practice areas.
Thus, rather than recommend retention of the disclaimer requirement, the Commission has
recommended that the rule be amended to require that every advertisement by a lawyer state:
“Tennessee certifies attorneys in some areas. See www.cletn.comor call 615-741-3096.”
While supportive of the work of the Commission and its promotion of specialty
certification, the Committee persists in its belief that the current disclaimer requirement is ill-
advised, and that the best approach to protect the public from confusion about lawyer specialization
is to permit lawyers who are properly certified as specialists to say so in their advertising, while at
the same time prohibiting those who are not certified from saying eitherthat they are certified or
that they are specialists. The Committee does not support the Commission’s suggested alternative.
In the Committee’s judgment, the required statement does not provide potential clients with
required statement should properly be viewed as a part of an institutional advertising campaign to
educate the public about speciality certification programs. In and of itself, there is nothing wrong
with such an educational initiative. The Committee believes, however, that it would be unwise to use
the Rules of Professional Conduct to require those lawyers who have chosen to exercise their
constitutional right to advertise to carry out this campaign on behalf of the Commission. If such a
campaign is needed, its cost should be borne by all lawyers, not just those who advertise. Also, if
more public education about lawyer specialization is needed, the Committee would suggest that
other forms of institutional advertising might be more effective than the statement proposed by the
Commission.