Md. R. Att'y 19-307.3
Md. R. Att'y 19-307.3
COMMENT
[1] There is a potential for abuse inherent in direct in-person, live telephone or real-time electronic contact by an attorney with a prospective client known to need legal services. These forms of contact between an attorney and a prospective client 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 attorney's presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and over-reaching.
[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 attorney advertising and written and recorded communication permitted under Rule 19-307.2 (7.2) offer alternative means of conveying necessary information to those who may be in need of legal services. Advertising and written and recorded communications which may be mailed or autodialed make it possible for a prospective client to be informed about the need for legal services, and about the qualifications of available attorneys and law firms, without subjecting the prospective client to direct in-person, telephone or real-time electronic persuasion that may overwhelm the client's judgment.
[3] The use of general advertising and written, recorded or electronic communications to transmit information from attorney to prospective client, rather than direct in-person, live telephone or real-time electronic contact, will help to assure that the information flows cleanly as well as freely. The contents of advertisements and communications permitted under Rule 19-307.2 (7.2) can be permanently recorded so that they cannot be disputed and may be shared with others who know the attorney. This potential for informal review is itself likely to help guard against statements and claims that might constitute false and misleading communications, in violation of Rule 19-307.1 (7.1). The contents of direct in-person, live telephone or real-time electronic conversations between an attorney and a prospective client can be disputed and may not be 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 an attorney would engage in abusive practices against a person who is a former client, or with whom the attorney has a close personal or family relationship, or in situations in which the attorney is motivated by considerations other than the attorney's pecuniary gain. Nor is there a serious potential for abuse when the person contacted is an attorney. Consequently, the general prohibition in Rule 19-307.3(a) (7.3) and the requirements of Rule 19-307.3(c) (7.3) are not applicable in those situations. Also, section (a) is not intended to prohibit an attorney from participating in constitutionally protected activities of public or charitable legal-service organizations or bona fide political, social, civic, fraternal, employee or trade organizations whose purposes include providing or recommending legal services to its members or beneficiaries.
[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 19-307.1 (7.1), which involves coercion, duress or harassment within the meaning of Rule 19-307.3(b)(2) (7.3), or which involves contact with a prospective client who has made known to the attorney a desire not to be solicited by the attorney within the meaning of Rule 19-307.3(b)(2) (7.3) is prohibited. Moreover, if after sending a letter or other communication to a client as permitted by Rule 19-307.2 (7.2) the attorney receives no response, any further effort to communicate with the prospective client may violate the provisions of Rule 19-307.3(b) (7.3).
[6] This Rule is not intended to prohibit an attorney 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 for the purpose of informing such entities of the availability of and details concerning the plan or arrangement which the attorney or attorney's firm is willing to offer. 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 attorney. Under these circumstances, the activity which the attorney 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 19-307.2 (7.2).
[7] The requirement in Rule 19-307.3(c) (7.3) that certain communications be marked "Advertising Material does not apply to communications sent in response to requests of potential clients or their spokespersons or sponsors. General announcements by attorneys, 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] Section (d) of this Rule permits an attorney to participate with an organization that uses personal contact to solicit members for its group or prepaid legal service plan, provided that the personal contact is not undertaken by any attorney who would be a provider of legal services through the plan. The organization must not be owned by or directed (whether as manager or otherwise) by any attorney or law firm that participates in the plan. For example, section (d) of this Rule would not permit an attorney to create an organization controlled directly or indirectly by the attorney and use the organization for the in-person or telephone solicitation of legal employment of the attorney through memberships in the plan or otherwise. The communication permitted by these organizations also must not be directed to a person known to need legal services in a particular matter, but is to be designed to inform potential plan members generally of another means of affordable legal services. Attorneys who participate in a legal service plan must reasonably assure that the plan sponsors are in compliance with Rules 19-307.1 (7.1), 19-307.2 (7.2) and 19-307.3 (b) (7.3). See 19-308.4 (a) (8.4).
Model Rules Comparison: Rule 19-307.3 (7.3) is substantially similar to the language of the Ethics 2000 Amendments to the ABA Model Rules of Professional Conduct, with the exception of retaining existing Maryland language in 19-307.3 (b)(1) (7.3) and accordingly redesignating the subsections of Rule 19-307.3(b) (7.3).
.For additional restrictions and requirements for certain communications, see Md. Code, Business Occupations and Professions Article, §§ 10-605.1 and 10-605.2.