Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
[ 204 PA. CODE CH. 81 ]
Amendment of Rule 7.3 of the Pennsylvania Rules of Professional Conduct; No. 166 Disciplinary Rules Doc.
[48 Pa.B. 4812]
[Saturday, August 11, 2018]
And Now, this 30th day of July, 2018, upon the recommendation of the Disciplinary Board of the Supreme Court of Pennsylvania, the proposal having been published for comment in the Pennsylvania Bulletin, 47 Pa.B. 5927 (September 23, 2017):
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rule 7.3 of the Rules of Professional Conduct is amended in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective in 60 days.
Justice Donohue files a dissenting statement.
TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
Subpart A. PROFESSIONAL RESPONSIBILITY
CHAPTER 81. RULES OF PROFESSIONAL CONDUCT
Subchapter A. RULES OF PROFESSIONAL CONDUCT
§ 81.4. Rules of Professional Conduct.
The following are the Rules of Professional Conduct:
INFORMATION ABOUT LEGAL SERVICES
Rule 7.3. Solicitation of Clients.
* * * * *
(b) A lawyer may contact, or send a written communication to, the target of the solicitation for the purpose of obtaining professional employment unless:
(1) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer;
(2) the person has made known to the lawyer a desire not to receive communications from the lawyer; [or]
(3) the communication involves coercion, duress, or harassment[.]; or
(4) the communication is a solicitation to a party who has been named as a defendant or respondent in a domestic relations action. In such cases, the lawyer shall wait until proof of service appears on the docket before communication with the named defendant or respondent.
Comment: * * * * *
(7) This Rule is not intended to prohibit a lawyer 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 purposes informing such entities of the availability of and details concerning the plan or arrangement which the lawyer or lawyer's firm is willing to offer. This form of communication is not directed to people who are seeking legal services for themselves. 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 lawyer. Under these circumstances, the activity which the lawyer 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 7.2.
(8) In this instance, the term ''domestic relations action'' includes the actions governed by the Family Court Rules, see Pa.R.C.P. No. 1931(a), and actions pursuant to the Protection of Victims of Sexual Violence or Intimidation Act, see 42 Pa.C.S. §§ 62A03 et seq. In such cases, a defendant/respondent party's receipt of a lawyer's solicitation prior to being served with the complaint can increase the risk of a violent confrontation between the parties. The prohibition in RPC 7.3(b)(4) against any solicitation prior to proof of service appearing on the docket is intended to reduce any such risk and allow for the plaintiff to take any appropriate steps.
I respectfully disagree with the decision of the majority of my colleagues to adopt the proposed amendment to Rule of Professional Conduct 7.3. Under both the United States and Pennsylvania Constitutions, commercial speech that is neither misleading nor related to unlawful activity may be regulated only if, inter alia, the commercial speech regulation is narrowly drawn. Florida Bar v. Went For It, Inc., 515 U.S. 618, 624 (1995) (citing Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557, 564-65 (1980)); Commonwealth Bureau of Prof. and Occupational Aff. v. State Bd. of Physical Therapy, 728 A.2d 340, 343 (Pa. 1999). This Court has held that this requires commercial speech regulations to be the least restrictive means of advancing the asserted interest. Commonwealth Bureau of Prof. and Occupational Aff., 728 A.2d at 343.
As proposed, the rule appears to be wildly over inclusive and will curb more speech than is necessary to effectuate the goal of the amendment. The proposed amendment does not differentiate between the vast majority of domestic relations actions and those where there exists the potential that a partner may become violent when learning of the domestic relations action. In my view, there is a less restrictive alternative available, as the Court could require that in cases where domestic violence is a concern, the plaintiff could file a motion to seal the complaint until service upon the defendant is made. It seems to me that such a rule would accomplish the laudable goal of the amendment—reducing domestic violence—while also ensuring that it does not unconstitutionally infringe upon an attorney's right to commercial speech.
As the proposed amendment does not pass constitutional scrutiny, I dissent.
[Pa.B. Doc. No. 18-1225. Filed for public inspection August 10, 2018, 9:00 a.m.]
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