Improper Client Solicitations
Improper client solicitation is better known as “shenanigans” which has historical roots in the English common law. In common law, “barratry” referred the “stirring up” of legal claims (often groundless) and was related to the common law concepts of “champerty” and “maintenance.” Today, “barratry” usually refers to lawyers or their agents initiating contact with potential clients to solicit legal representation. Rule 7.03, Texas Disciplinary Rules of Professional Conduct, doesn’t use the term “barratry,” but does prohibit the improper initiation of contact with potential clients. Improper solicitation is not just prohibited under the Texas disciplinary rules; it is also a broadly defined crime under Section 38.12, Texas Penal Code.
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1. Primary Rule: Rule 7.03
Rule 7.03(a), Texas Disciplinary Rules of Professional Conduct, is the primary “anti-improper solicitation” provision:
(a) A lawyer shall not by in-person contact, or by regulated telephone or other electronic contact as defined in paragraph (f), seek professional employment concerning a matter arising out of a particular occurrence or event, or series of occurrences or events, from a prospective client or nonclient who has not sought the lawyer's advice regarding employment or with whom the lawyer has no family or past or present attorney-client relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. Notwithstanding the provisions of this paragraph, a lawyer for a qualified nonprofit organization may communicate with the organization's members for the purpose of educating the members to understand the law, to recognize legal problems, to make intelligent selection of counsel, or to use legal services. In those situations where in-person or telephone or other electronic contact is permitted by this paragraph, a lawyer shall not have such a contact with a prospective client if:
(1) the communication involves coercion, duress, fraud, overreaching, intimidation, undue influence, or harassment;
(2) the communication contains information prohibited by Rule 7.02(a); or
(3) the communication contains a false, fraudulent, misleading, deceptive, or unfair statement or claim.
1.1 Prohibited Actions under Rule 7.03
Breaking down paragraph (a) into its key points, a lawyer shall not:
1. Use in-person contact, or telephone or other electronic contact (email or any electronic means that involves direct communication by the lawyer);
2. To seek professional employment by a prospective client or non-client who has not initiated contact with the lawyer or who has no family or past or present attorney-client relationship with the lawyer;
3. Concerning a matter arising out of a particular occurrence or event, or series or occurrences or events;
4. When a significant motive for the lawyer’s initiated contact with the potential client is pecuniary gain.
1.2 Exceptions
Paragraph (a) provides a narrow exception for lawyers who represent a qualified nonprofit organization. Those lawyers can initiate contact with the organization’s members for educational purposes as long as the lawyer does not involve improper acts such as coercion, duress, fraud, overreaching, false or misleading statements, or information that violates Rule 7.02(a). Rule 7.02(a) contains a number of advertising-related prohibitions and should be reviewed carefully as there are several pitfalls there for the unwary.