The Forbidden Methods of "Real-Time Electronic Contact"

American Bar Association (ABA) Model Rule 7.3 prohibits a lawyer from soliciting professional employment in person, by live telephone or real-time electronic contact where pecuniary gain is a significant motive and the prospective client is not a lawyer and does not have a family, close personal or prior professional relationship with the lawyer.[1] Under the rule, where pecuniary gain is the motive and no relationship exists, Rule 7.3’s prohibition is an absolute, categorical ban based on method of contact, but what are these forbidden methods of “real-time electronic contact”?

The phrase, added in 2002, is not defined in the Rule; nor is it given any clarification in the Rule’s comments. The ABA’s explanation of the change makes clear that the phrase was at least intended to apply to Internet chat rooms,[2] but little additional guidance is offered. Utah—in an attempt to bring some clarity to its version of Rule 7.3—added comment 1a, which defines “real-time communication” to mean “communication directed to a specific recipient and characterized by the immediacy and interactivity of response between individuals, such as that provided through…Internet ‘chat rooms.’”[3]

The Philadelphia Bar Association (the “association”), however, is strongly opposed to such a categorical approach to defining the phrase “real-time electronic contact” as shown by a recent opinion of the association.[4] According to the association’s opinion, Rule 7.4 applies only if the communication is “used in a way in which it would be socially awkward or difficult for a recipient of a lawyer’s overtures to not respond in real time.”[5] Further, “it has become readily apparent to everyone that they need not respond instantaneously to electronic overtures, and that everyone realizes that…e-mails, blogs and chat room comments can be readily ignored.”[6] Therefore, Rule 7.3 does not even apply to the ubiquitous chat room.[7] The association’s opinion—while at odds with the plain meaning of Rule 7.3, as well as the interpretation of the ABA and at least one state (Utah)—is well reasoned, especially in light of Supreme Court precedent on the issue.  

The Supreme Court has considered a number of “categorical” bans on the methods by which a lawyer may solicit prospective clients through the lens of First-Amendment analysis.[8] The “relevant inquiry is…whether the mode of communication poses a serious danger that lawyers will exploit any…susceptibility” on part of the prospective client.[9]

The Court has held that a rule banning all in-person solicitation is constitutional because the practice is “rife with possibilities for overreaching, invasion of privacy, the exercise of undue influence, and outright fraud.”[10] Further, short of an absolute ban, it would be very difficult to advance the interest because in-person solicitation “is not visible or otherwise open to public scrutiny.”[11]

However, categorical bans on print advertising and letters—even targeted direct-mail—were held to be unconstitutional. These types of written solicitation “‘conve[y] information about legal services [by means] that [are] more conducive to reflection and the exercise of choice on part of the consumer than personal solicitation by an attorney.’”[12] Written solicitation “can readily be put in a drawer to be considered later, ignored, or discarded.”[13]
Of course, it is important to remember that, although well-reasoned, the association’s opinion comes with a caveat: It “is advisory only and…not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court.”[14] Thus, it is unknown how a Pennsylvania court might ultimately rule on this issue.

The impact of such a vague and potentially broad rule can be frustrating for lawyers hoping to use the Internet to seek prospective clients without violating the applicable solicitation rules. As one commentator, Wesley Clark, said: “All too often it seems as though the Bar’s goal is to paralyze lawyers, or at least build a wall around traditional practices by working to disallow useful innovation in order to protect the establishment.”[15]

Clark’s comment is reminiscent of Justice Marshall’s concurrence in Ohralik, which remarked on the discriminatory impact of the solicitation rules, not just on the consumers of legal services, but on the suppliers.[16] Solicitation rules, the Justice stated, developed as rules of “etiquette” and “rest on the notion that a lawyer’s reputation in his community spreads by word of mouth and brings business to the worthy lawyer.”[17] Therefore, these rules “fall most heavily on those attorneys engaged in a single-practitioner or small-partnership form of practice—attorneys who typically earn less than their fellow practitioners in larger, corporate-orientated firms. Indeed, some scholars have suggested that the rules against solicitation were developed by the professional bar to keep recently immigrated lawyers, who gravitated toward the smaller, personal injury practice, from effective entry into the profession.”[18]

The Internet, by providing a level playing field of access to those who want it, is able to break down many of these barriers. Rule 7.3, however, seems to categorically ban many such modes of access, or at least, to leave lawyers leery of whether such solicitation qualifies as the sort of “real-time electronic contact” that the rule prohibits.

Conclusion
At least one bar association has interpreted Rule 7.3’s ban on real-time electronic communication as being limited to those contexts where the recipient cannot readily turn off the lawyer’s advance. This interpretation seems quite logical and also in accord with Supreme Court precedent on the issue. The “plain meaning” of the Rule, however, makes adhering to the Philadelphia Bar Association’s contextual interpretation a risky proposition, unless and until either the ABA revisits the issue or a lawyer’s home state issues an interpretive ruling on the rule.