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2008 Edition: Tennessee Rules of Professional Conduct Download Rules as a PDF | Return to Rules home page |
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Rule 7.3
SOLICITATION AND OTHER COMMUNICATIONS DIRECTED TO SPECIFICALLY IDENTIFIED RECIPIENTS (a) If a significant motive for the solicitation is the lawyer’s pecuniary gain, a lawyer shall not solicit 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. (b) A lawyer shall not solicit professional employment by in-person, live telephone, or real-time 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: (1) the person solicited has made known to the lawyer a desire not to be contacted by the lawyer; or (2) the communication constitutes overreaching, coercion, duress, harassment, undue 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, 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 thirty (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. (c) If a significant motive for the solicitation is the lawyer’s pecuniary gain, a lawyer shall not send 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: (1) Each communication, including envelopes and self-mailing brochures or pamphlets, shall include the words "THIS IS AN ADVERTISEMENT" as follows: (a) In written communications sent by mail, telegraph, facsimile, or computer 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. (b) In video communications, the required wording shall appear conspicuously in 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)(1)(c) below. (c) In audio communications, the required wording shall be presented at both the 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. (2) A lawyer shall not state or imply that a communication otherwise permitted by these rules has been approved by the Tennessee Supreme Court or the Board of Professional Responsibility. (3) If a contract for representation is mailed with the communication, the top of each page of the contract shall be marked "SAMPLE" and the words "DO NOT SIGN" shall appear on the client signature line. (4) Written communications shall not be in the form of or include legal pleadings or other formal legal documents. (5) Communications delivered to prospective clients shall be sent only by regular U.S. mail and not by registered, certified, or other forms of restricted delivery, or by express delivery or courier. (6) Any communication seeking employment by a specific prospective client in a specific matter shall comply with the following additional requirements: (i) The communication shall disclose how the lawyer obtained the information prompting the communication; (ii) The subject matter of the proposed representation shall not be disclosed on the outside of the envelope (or self-mailing brochure) in which the communication is delivered; and (iii) The first sentence of the communication shall state, "IF YOU HAVE ALREADY HIRED OR RETAINED A LAWYER IN THIS MATTER, PLEASE DISREGARD THIS MESSAGE." (7) A copy of each written, audio, video, or electronically transmitted communication sent to 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 number, 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 communications were 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. (d) Unless the subject matter of the communication is restricted to matters of general legal interest or to an announcement of an association or affiliation with another lawyer that 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. COMMENTS [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 that 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 a 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 and 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 7.3(b)(3) are not applicable in those situations. [5] But even permitted forms of solicitation can be abused. Thus, any solicitation that 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 thirty (30) days after an accident or disaster involving the individual or 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 that 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. DEFINITIONAL CROSS-REFERENCES "Fiduciary" See RPC 1.0(d) |
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