What Is the California Solicitation Rule for Lawyers?
The California solicitation rule, Rule 7.3, restricts a lawyer (or her agent) from directly contacting a specific person she knows or should know needs legal services, when a significant motive is the lawyer’s own financial gain. Unlike advertising — aimed at the public generally — solicitation targets one specific, often vulnerable, person in real time, which carries a much higher risk of undue influence and overreaching.
If you’re preparing for the California Bar Exam, this rule is almost always tested against a fact pattern involving accident scenes, hospitals, or “runners” — know the real-time versus indirect distinction cold.
What Counts as Prohibited Real-Time Solicitation
Prohibited (real-time) solicitation means in-person, live-telephone, or real-time electronic contact, where a significant motive is the lawyer’s pecuniary gain, aimed at someone who isn’t a lawyer, family member, close friend, or prior client. Approaching an accident victim at the hospital is solicitation; a TV ad the same victim happens to see later is advertising — the difference is the real-time, targeted, in-person nature of the contact.
Exceptions to the general prohibition: other lawyers; family members and close personal friends; prior clients; contact through a non-profit lawyer-referral service; and (post-2018 ABA amendments) in-person solicitation of business clients who routinely use legal services. Even where allowed, coercion, duress, or harassment is always forbidden.
Indirect Solicitation: Mail, Email, Text
Indirect, not-for-profit-style solicitation — mail, email, text, social media — is generally permitted, because the recipient can simply ignore or discard it. The lawyer still can’t target someone who has made known a desire not to be solicited, and coercion or harassment remains off-limits regardless of the medium.
Targeted Mailings and the “ADVERTISEMENT” Label
A lawyer can mail specific, identified people — like foreclosure defendants pulled from public court records — as long as the mailing is properly labeled:
- ABA: mark it “Advertising Material” on the outside envelope and at the start/end of the communication, unless the recipient is unlikely to be vulnerable.
- California: mark it “ADVERTISEMENT” on the outside envelope or at the beginning and end, unless the target is a lawyer or has a close personal/professional relationship with the sender.
- California’s vulnerable-persons presumption: solicitation or advertising aimed at people in a vulnerable state — hospitals, accident scenes — is presumed improper or misleading.
The Landmark Solicitation Cases
Four Supreme Court cases define this doctrine, and the exam tests all of them:
- Ohralik v. Ohio State Bar Association (1978): upheld discipline against a lawyer who personally solicited two accident victims in person for pecuniary gain — real-time, for-profit, in-person solicitation can be banned outright because of its unique potential for overreaching.
- In re Primus (1978): decided the same day as Ohralik, protected an ACLU lawyer’s letter offering free representation to a woman coerced into sterilization — solicitation for political or associational goals, rather than pecuniary gain, gets full First Amendment protection.
- Shapero v. Kentucky Bar Association (1988): a state cannot categorically ban truthful, non-coercive targeted direct-mail solicitation of a specific person known to need legal services — the recipient can simply throw the letter away, unlike a live encounter.
- Florida Bar v. Went For It, Inc. (1995): upheld a 30-day moratorium on direct-mail solicitation of accident and disaster victims (and their relatives) as narrowly tailored to a substantial state interest in privacy and the profession’s reputation — the doctrinal root of “cooling off” mail restrictions in some jurisdictions.
California’s current Rule 7.3 doesn’t codify a fixed day-count moratorium for accident-victim mail; instead, it relies on the vulnerable-persons presumption described above.
Worked Example: The Hospital “Capper”
A lawyer’s brother, an ER admitting clerk, hands injured trauma patients the lawyer’s business card and urges them to call about a malpractice case. The lawyer pays the brother $500 for every patient who retains her. This violates Rule 7.3 on multiple fronts: the brother is directly soliciting vulnerable people in real time, a lawyer can’t do through an agent what she can’t do herself, and the $500-per-referral payment is also a prohibited referral fee. This is the classic “runner” or “capper” fact pattern.
Worked Example: The Marked Foreclosure Letter
A real-estate lawyer pulls a list of homes in foreclosure from public court records and mails a letter offering foreclosure-defense services, with “ADVERTISEMENT” printed on the envelope and at the top and bottom of the letter. This is a permissible targeted mailing — the homeowners can review it at their leisure, aren’t under real-time pressure, and are clearly told it’s a solicitation, satisfying California’s marking requirement even though foreclosure defendants are financially vulnerable.
Worked Example: The Accident-Scene Approach
Moments after a car accident, before responders arrive, a lawyer approaches the bleeding driver and says, “I’m a personal-injury lawyer. Call me.” This is prohibited real-time, in-person, for-profit solicitation of someone in a vulnerable state — disoriented, injured, and with no chance to consult family or an advisor. California presumes this contact improper.
| Type of Contact | Real-Time? | Permitted? |
|---|---|---|
| In-person approach at an accident scene | Yes | No |
| Marked direct-mail letter to foreclosure defendants | No | Yes |
| Paid “runner” soliciting hospital patients | Yes (through agent) | No |
| Phone call to a repeat business client about corporate work | Yes, but exception applies | Yes |
Common Mistakes on the California Bar Exam
- Confusing advertising and solicitation. A public ad the victim happens to see is advertising; a targeted, real-time approach is solicitation.
- Assuming an agent shields the lawyer. What a lawyer can’t do directly, she can’t do through a “runner” or “capper” either.
- Forgetting the marking requirement for targeted mail. California requires “ADVERTISEMENT” on the envelope or at the start and end of the letter.
- Missing the business-client carve-out. Post-2018 ABA rules allow in-person solicitation of business clients who routinely use legal services — this exception doesn’t apply to ordinary consumers.
- Mixing up the four landmark cases. Know that Ohralik upheld a real-time in-person ban, Primus protected political-motive solicitation, Shapero protected targeted mail, and Went For It upheld a mail moratorium.
FAQ
Is mailing a letter to a specific accident victim considered solicitation?
Yes, but it’s generally permitted if properly marked. California requires “ADVERTISEMENT” on the envelope or at the start and end of the letter, and applies a presumption that contact with people in a vulnerable state (like hospitals or accident scenes) is improper.
Can a lawyer solicit a family member or close friend in person?
Yes. Rule 7.3’s prohibition on real-time, for-profit solicitation doesn’t apply to lawyers, family members, close personal friends, or prior clients.
What is a “runner” or “capper” in California legal ethics?
A runner or capper is an agent who solicits clients for a lawyer at vulnerable locations like hospitals, accident scenes, or courthouses, often for a per-referral payment. This combines an improper-solicitation violation with an improper-referral-fee violation.
Key Takeaways
- Real-time, in-person, or live-telephone solicitation for pecuniary gain is generally prohibited, with exceptions for lawyers, family, close friends, prior clients, and (in some jurisdictions) business clients.
- Indirect solicitation like mail and email is generally permitted if properly marked and not directed at someone who asked not to be contacted.
- California presumes solicitation of people in a vulnerable state, like hospitals or accident scenes, to be improper.
- Ohralik, Primus, Shapero, and Went For It together define the constitutional boundaries of solicitation regulation.
- Agents who solicit on a lawyer’s behalf are bound by the same rules as the lawyer herself.
This article is educational and is not legal advice. Consult a licensed California attorney about your situation.
Related guides
- California lawyer advertising rules explained
- California referral fee rules for lawyers
- Unauthorized practice of law in California