THE COURTS

PART V. PROFESSIONAL ETHICS AND CONDUCT

[ 204 PA. CODE CH. 81 ]

Proposed Amendments to Pennsylvania Rule of Professional Conduct 7.3 Relating to Solicitation of Clients in Domestic Relations Actions

[47 Pa.B. 5927]
[Saturday, September 23, 2017]

 Notice is hereby given that The Disciplinary Board of the Supreme Court of Pennsylvania is planning to recommend to the Supreme Court of Pennsylvania that it adopt amendments to Pennsylvania Rule of Professional Conduct (''Rule'') 7.3 relating to solicitation of clients in domestic relations actions, as set forth in Annex A.

 Pennsylvania RPC 7.3 currently permits direct solicitation of clients through written communications, 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.

 In November 2016, a legal practitioner in the Commonwealth alerted the Supreme Court and the Disciplinary Board to a troubling practice engaged in by some practitioners. Certain domestic relations attorneys have begun to monitor the court dockets and review county legal journals to discover recently filed divorce actions. With this information, they promptly mail solicitation letters to the named defendants, informing the prospective client that a divorce has been filed against the defendant and offering legal counsel. In some situations, solicitations are sent and received before the complaint has been served. This practice has the potential for violent and even deadly consequences, where, for example, an abusive spouse, newly aware of the impending domestic action, is able to confront the plaintiff spouse, who has not yet served the action and has not yet taken safety precautions. Anecdotally, the Pennsylvania lawyer reported that she represented a woman who was a victim of abuse and who had planned her move from the marital home for the day after the she filed the complaint in divorce. The defendant spouse, however, received a solicitation letter within 24 hours of the filing of the complaint, and on the evening before the plaintiff was to leave the marital home, the defendant spouse assaulted the plaintiff in front of their children.

 The timing of domestic relations complaints and the details contained therein can be sensitive in nature; therefore, the service of such complaints is often strategically timed, with consideration for the plaintiff to take necessary protective steps. According to the Pennsylvania Coalition Against Domestic Violence, the time immediately after an individual leaves an abusive partner is the most dangerous time. Further, statistics show that more than half of domestic violence homicides occur during estrangement or while the victim is planning to leave the abuser.¹ In fact, ''the extant research literature shows that women experience an increased risk of lethal violence when they leave intimate relationships with men.''²

 After this issue was brought to the Board's attention, the Board discussed the unfortunate role that legal practitioners may play in the escalation of violence and explored steps to address attorney conduct. Upon our review, Pennsylvania is not alone in experiencing this problem and is not alone in seeking a method to prevent escalation of domestic violence due to certain legal practices through regulation of attorney conduct.

 The Ohio Rules of Professional Conduct permit targeted solicitation letters to prospective clients; however, pursuant to Rule 7.3(d), if a spouse files for divorce, a solicitation letter may not be sent to the defendant in divorce until the lawyer or law firm verifies that service is effectuated. Similarly, Tennessee Rule of Professional Conduct 7.3(b)(3) provides that in divorce or legal separation actions, an attorney must wait 30 days after the filing of the cause of action to solicit potential clients. Tennessee's comment to 7.3 explains that the prohibition against any solicitation within thirty (30) days of the filing of a complaint for divorce or legal separation is intended to reduce the risk of domestic violence and to allow the plaintiff spouse to take appropriate steps to seek shelter, obtain an order of protection, and/or pursue other relief.

 Florida's Rule of Professional Conduct 4-7.18(b)(1)(G) is more limited in scope than the rules in Ohio and Tennessee. A Florida attorney is prohibited from sending an unsolicited written communication to a prospective client if the communication concerns a request for an injunction for protection against any form of physical violence; the communication is addressed to the respondent in the injunction petition; and the lawyer knows or has reason to know that the respondent named in the injunction petition has not yet been served with notice of process in the matter.

 Following consideration of the approaches taken in other jurisdictions, the Disciplinary Board proposes an amendment to 7.3 which, in effect, prohibits attorneys from soliciting defendants or respondents in domestic relations matters until 30 days have passed since the action was filed. The proposed amendment adds new paragraph (4) to provide that a lawyer may contact, or send written communication to, the target of the solicitation for the purpose of obtaining professional employment unless 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 30 days from the filing of the action before communicating with the named defendant or respondent. The Board proposes amending the commentary by adding new comment (8) to explain the reason for the 30-day prohibition against solicitation in domestic relations actions, specifically noting that the risk of violent confrontations may increase in these matters if a defendant or respondent is solicited prior to service of the action.

 Interested persons are invited to submit written comments by mail or facsimile regarding the proposed amendments to the Office of the Secretary, The Disciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, PO Box 62625, Harrisburg, PA 17106-2625, Facsimile number (717-231-3382), Email address Dboard.comments@pacourts.us on or before November 22, 2017.

By the Disciplinary Board of the
Supreme Court of Pennsylvania

JULIA FRANKSTON-MORRIS, Esq., 
Secretary

Annex A

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 30 days from the filing of the action 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) Some domestic relations matters, including but not limited to: divorce, custody, protection from abuse, involve either an alleged history of domestic violence or a potential for domestic violence. 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 within thirty (30) days is intended to reduce any such risk and allow for the plaintiff to take any appropriate steps.

[Pa.B. Doc. No. 17-1569. Filed for public inspection September 22, 2017, 9:00 a.m.]

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¹  Campbell, Jacqueline C., et al, ''Accessing Risk Factors for Intimate Partner Homicide,'' NIJ Journal 250 (2003): 16. NCJ 196547.

²  Websdale, Neil. Understanding Domestic Homicide. Boston, MA: Northeastern University Press (1999).

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