VII. INFORMATION ABOUT LEGAL SERVICES

Rule 7.05 Prohibited Written Solicitations

(a) A lawyer shall not send or deliver, or knowingly permit or cause another person to send or deliver on the lawyer's behalf, a written communication to a prospective client for the purpose of obtaining professional employment if:

(1) the communication involves coercion, duress, fraud, overreaching, intimidation, undue influence, or harassment;

(2) the communication contains information prohibited by Rule 7.02 or fails to satisfy each of the requirements of Rule 7.04(a) through (c), and (h) through (o) that would be applicable to the communication if it were an advertisement in the public media; or

(3) the communication contains a false, fraudulent; misleading, deceptive, or unfair statement or claim.

(b) Except as provided in paragraph (e) of this Rule, a written solicitation communication to prospective clients for the purpose of obtaining professional employment:

(l) shall conform to the provisions of Rule 7.04(a) through (c);

(2) shall be plainly marked "ADVERTISEMENT" on the first page of the written communication, and the face of the envelope also shall be plainly marked "ADVERTISEMENT," however, if the written communication is in the form of a self-mailing brochure or pamphlet, the word "ADVERTISEMENT" shall be: (i) in a color that contrasts sharply with the background color; and (ii) in a size of at least 3/8" vertically or three times the

vertical height of the letters used in the body of such communication, whichever is

larger.

(3) shall not be made to resemble legal pleadings or other legal documents;

(4) shall not contain a statement or implication that the written communication has received any kind of authorization or approval from the State Bar of Texas or from the Law Advertisement and Solicitation Review Committee;

(5) shall not be sent in a manner, such as by registered mail, that requires personal delivery to a particular individual;

(6) shall not reveal on the envelope used for the communication, or on the outside of a self-mailing brochure or pamphlet, the nature of the legal problem of the prospective client or nonclient; and

(7) shall disclose how the lawyer obtained the information prompting such written communication to solicit professional employment if such contact was prompted by a specific occurrence involving the recipient of the communication or a family member of such person(s).

(c) All written communications to a prospective client for the purpose of obtaining professional employment must be reviewed and either signed by or approved in writing by the lawyer or a lawyer in the firm.

(d) A copy of each written solicitation communication, the relevant approval thereof, and a record of the date of each such communication; the name and address to which each such communication was sent; and the means by which each such communication was sent shall be

kept by the lawyer or firm for four years after its dissemination.

(e) The provisions of paragraph (b) of this Rule do not apply to a written solicitation communication:

(1) directed to a family member or a person with, whom the lawyer had or has an attorney-client relationship;

(2) that is not motivated by or concerned with a particular past occurrence or event or a particular series of past occurrences or events, and also is not motivated by or concerned with the prospective client's specific existing legal problem of which the lawyer is aware;

(3) if the lawyer's use of the communication to secure professional employment was not significantly motivated by a desire for, or by the possibility of obtaining, pecuniary gain; or

(4) that is requested by the prospective client

 

Comment- Rule 7.05

1. Rule 7.03 deals with in-person or telephone contact between a lawyer and a prospective client wherein the lawyer seeks professional employment. Rule 7.04 deals with advertisements in the public media by a lawyer seeking professional employment. This Rule deals with written solicitations between a lawyer and a prospective client. Typical examples are letters or other forms of correspondence addressed to a prospective client.

2. Written solicitations raise more concerns than do comparable written advertisements. Being private, they are more difficult to monitor, and for that reason paragraph (d) requires retention for four years of certain information regarding written solicitations. See also Rule 7.07(a). Paragraph (a) addresses such concerns as well as problems stemming from exceptionally outrageous communications such as written solicitations involving fraud, intimidation, or deceptive and misleading claims. Because receipt of multiple solicitations appears to be most pronounced and vexatious in situations involving accident victims, paragraph (b)(7) requires disclosure of the source of information if the solicitation was prompted by a specific occurrence.

3. Because experience has shown that many written solicitations have been intrusive or misleading by reason of being personalized or being disguised as some form of official communication special prohibitions against such practices are necessary. The requirements of paragraph (b) greatly lessen those dangers of deception and harassment.

4. Newsletters or other works published by a lawyer that are not circulated for the purpose of obtaining professional employment are not within the ambit of paragraph (b).

5. In addition to addressing these special problems posed by written solicitations, Rule 7.05 regulates the content of those communications. It does so by incorporating the standards of Rule 7.02 and those of Rule 7.04 that would apply to the written solicitation were it instead a written advertisement in the public media. See paragraphs (a)(2), (3), and (b)(1). In brief, this approach means that a lawyer may not include or omit anything from a written solicitation unless the lawyer could do so were the communication a written advertisement in the public media, except for those statements or disclaimers required by Rule 7.04(a)-(c). See subparagraph (b)(1).

6. Paragraph (e) provides that none of the restrictions in paragraph (b) apply in certain situations because the dangers of deception, harassment vexation and overreaching are quite low. For example, a written solicitation may be directed to a family member or a present or a former client or in response to a request by a prospective client. Similarly, a written solicitation may be used in seeking general employment in commercial matters from a bank or other corporation, when there is neither concern with specific existing legal problems nor concern with a particular past event or series of events. All such communications, however, remain subject to Rule 7.02 and paragraphs (h) through (o) of Rule 7.04. See subparagraph (a)(2).

7. In addition, paragraph (e) allows such communications in situations not involving the lawyer’s pecuniary gain. For purposes of these rules, it is presumed that communications made on behalf of a nonprofit legal aid agency, union, or other qualified nonprofit organization are not motivated by a desire for, or by the possibility of obtaining, pecuniary gain, but that presumption may be rebutted.