Proposed Changes to Solicitation Rules


BNA’s Joan Rogers writes about a proposal by the Association of Professional Responsibility Lawyers to amend the Model Rules of Professional Conduct’s current limits on lawyer solicitation. The most significant changes would eliminate the rules’ antiquated prohibition on “real-time electronic contact” and allow in-person solicitation of “sophisticated user[s] of legal services.”

Elimination of the “real-time electronic contact” rule is long overdue. The rule is based on the dubious assumption that lawyers in chat rooms and similar online forums will be able to exert undue influence on consumers. Many law firms violate this rule by allowing chats on their websites—a feature more helpful to consumers than harmful to them. Moreover, changes in technology have eroded the distinction between “real-time” and other electronic communications. For example, text messages are normally considered real-time and email is not. But in an era where people get email notifications on their phones, what really is the difference between email and text messages?

The proposal to allow solicitation of sophisticated consumers is also a step in the right direction, but does not go far enough. The current ban on in-person solicitation is probably unconstitutional in many other contexts where there is no inherent risk of coercion or overreaching. There are also situations where any risk of overreaching is probably outweighed by the benefit to the consumer, such as solicitation of unrepresented litigants at a courthouse. Rather than carving out exceptions to a blanket prohibition, it makes more sense to prohibit in-person solicitation only in circumstances that involve coercion, intimidation, or overreaching.