Category: Anti-Bribery and Corruption

Solicitation

Also known as: Criminal solicitation, Solicitation to commit a crime

Simply put

Solicitation generally refers to the act of requesting, urging, or seeking to obtain something from another person. In criminal law, it typically describes an inchoate offense in which one person asks, commands, or encourages another to commit a crime, whether or not the crime is ever carried out. The precise meaning depends heavily on context and jurisdiction, as the term is used in both everyday and specialized legal senses.

Formal definition

In its general sense, solicitation is the act or practice of soliciting, meaning requesting, urging, or attempting to obtain goods, services, or conduct from another party. In criminal law, solicitation is an inchoate offense that typically requires proof of two essential elements: the defendant's intent that another person engage in criminal conduct, and some act, such as a request, command, or encouragement, directed toward inducing that conduct. As an inchoate offense, liability generally does not depend on whether the solicited crime is actually attempted or completed. The specific statutory elements, defenses, and treatment of solicitation vary by jurisdiction, and this entry addresses the criminal-law usage rather than regulatory or commercial contexts (for example, solicitation in the sense of marketing or fundraising), which are out of scope here. This entry is educational and not legal advice.

Why it matters

Solicitation is significant in compliance and criminal-law contexts because it is an inchoate offense, meaning liability can generally attach based on the request or encouragement to commit a crime itself, without regard to whether the underlying crime is ever attempted or completed. This makes solicitation a distinct area of exposure, since conduct that stops short of any completed wrongdoing may still create legal risk when the requisite intent and inducing act are present.

For organizations, the concept matters because communications that urge, command, or encourage another party to engage in criminal conduct can carry consequences independent of any resulting act. Understanding where solicitation sits as a standalone offense helps compliance and legal functions frame policies, training, and monitoring around the substance of requests and encouragement, not only around completed transactions or outcomes.

Because the statutory elements, available defenses, and treatment of solicitation vary by jurisdiction, the practical importance of the term depends heavily on the applicable law and the specific facts. This entry is educational and not legal advice; determining whether particular conduct constitutes solicitation is a fact-specific and jurisdiction-specific question that generally calls for qualified legal counsel.

Who it's relevant to

General Counsel and Legal Teams

Legal teams assess whether particular communications or requests could constitute solicitation under applicable law. Because the elements, defenses, and treatment vary by jurisdiction, counsel generally evaluates the specific facts and the governing statute rather than relying on a single universal standard.

Chief Compliance Officers

Compliance leaders may consider solicitation risk when designing policies and training, since the offense can turn on requests or encouragement to commit a crime rather than on completed conduct. Understanding solicitation as an inchoate offense helps frame monitoring and controls around the substance of communications.

Internal Auditors and Investigators

Those conducting internal reviews may encounter conduct that involves requesting, commanding, or encouraging others toward wrongful acts. Recognizing that such conduct can carry exposure independent of any completed act informs how findings are documented and escalated, subject to legal review.

Board Members and Oversight Committees

Directors exercising oversight benefit from a general understanding that solicitation is a distinct, fact- and jurisdiction-specific legal concept. This awareness supports informed questions to management and counsel without substituting for the specialized legal assessment such matters typically require.

Inside Solicitation

Request or Communication Element

At its core, solicitation typically involves a communication or request directed at one or more parties, such as shareholders, potential investors, or contract bidders. The specific meaning depends heavily on the context in which the term is used.

Proxy Solicitation

In a corporate governance context, solicitation often refers to the process of seeking authority from shareholders to vote their shares, generally in connection with a shareholder meeting. In many jurisdictions this activity is subject to disclosure and filing requirements that vary by jurisdiction, listing rules, and entity type.

Procurement Solicitation

In a procurement or contracting context, solicitation generally describes a formal invitation for suppliers or vendors to submit bids, proposals, or quotes. This usage is distinct from proxy solicitation and is governed by different rules and internal policies.

Anti-Corruption and Ethics Dimension

In a compliance context, solicitation may refer to the requesting of a bribe, kickback, or other improper benefit. Whether such conduct is prohibited, and how, depends on applicable anti-bribery and anti-corruption laws that differ across jurisdictions.

Disclosure and Documentation Requirements

Where solicitation is regulated, it is typically accompanied by requirements to provide accurate information to recipients and to retain records. The precise obligations depend on the governing statute, regulation, or framework and on the facts of a given situation.

Common questions

Answers to the questions practitioners most commonly ask about Solicitation.

Is proxy solicitation just about formally asking shareholders to sign and return a proxy card?

Not necessarily. In many jurisdictions, solicitation is defined more broadly than the formal request to execute or return a proxy. Communications reasonably calculated to result in the procurement, withholding, or revocation of a proxy can fall within the concept, even where no proxy card is enclosed. Whether a particular communication qualifies as solicitation typically depends on its content, timing, and audience, as well as the applicable regulatory regime and any available exemptions. Because these boundaries turn on jurisdiction-specific rules and facts, this entry is educational and organizations should confirm the treatment of a given communication with qualified counsel.

Does every communication with shareholders about a vote trigger the full set of solicitation requirements?

Generally, no. Many regimes recognize exemptions or safe harbors under which certain communications, such as some public statements of how a shareholder intends to vote or limited communications not seeking proxy authority, are not subject to the complete set of filing and disclosure obligations. The availability and scope of these exemptions vary by jurisdiction, the identity of the party communicating, and the nature of the message. Relying on an exemption is a fact- and jurisdiction-specific judgment, and this entry does not constitute legal advice on whether a particular communication qualifies.

Who within an organization is typically accountable for ensuring solicitation activities comply with applicable requirements?

Accountability is generally shared across functions. Management, often working with the corporate secretary and legal or compliance teams, typically owns the operational execution of a solicitation, including preparing materials and meeting applicable filing and disclosure obligations. The board and relevant committees generally retain oversight responsibility rather than day-to-day operational duties. Assurance functions may review controls over the process. The precise allocation depends on the entity's governance structure and internal policies, and organizations should map roles clearly to avoid gaps in ownership.

How should an organization document and control its solicitation process?

Organizations commonly maintain policies and procedures that define who may communicate with shareholders, what approvals are required before materials are released, and how communications are reviewed against applicable requirements. Version control of materials, retention of records, and a defined review-and-sign-off workflow help demonstrate both that controls are appropriately designed and that they operate effectively. The appropriate level of documentation typically reflects the entity's size, sector, and the complexity of the matter being voted on. Specific control expectations depend on the applicable regulatory regime.

What should be considered when engaging a third-party proxy solicitor?

When retaining an external solicitor, organizations generally consider the scope of the engagement, the division of responsibilities between the firm and internal teams, and how the firm's activities will be supervised so that communications remain consistent with applicable requirements and approved messaging. Because the organization typically remains responsible for its solicitation regardless of who executes the work, oversight arrangements, escalation paths, and record-keeping expectations are commonly addressed in the engagement. The specific obligations that attach to a solicitor's role vary by jurisdiction.

How can a contested solicitation change the process and controls an organization applies?

In a contested situation, where more than one party is soliciting proxies, the process generally becomes more complex, and communications may attract closer regulatory and public scrutiny. Organizations often tighten review and approval controls, coordinate closely among legal, communications, and the corporate secretary's office, and pay particular attention to the accuracy and consistency of statements made to shareholders. The applicable filing, disclosure, and conduct requirements in a contest depend on the jurisdiction and the facts, so specific obligations should be confirmed with qualified advisers.

Common misconceptions

Solicitation has a single, uniform meaning across governance, risk, and compliance.

The term carries materially different meanings depending on context. Proxy solicitation, procurement solicitation, and the solicitation of improper benefits are separate concepts governed by different rules, and conflating them can lead to misapplied requirements. The correct interpretation depends on the specific facts and applicable regime.

All solicitation activity is subject to the same mandatory legal requirements everywhere.

Requirements vary by jurisdiction, sector, entity type, and the type of solicitation involved. Some obligations are binding legal requirements while others reflect voluntary standards or internal policy. Whether a particular communication triggers regulated solicitation is often a fact-specific and jurisdiction-specific question.

Responsibility for managing solicitation-related obligations sits with a single function.

Depending on the type of solicitation, accountability may sit with different parties. Management typically owns the operational conduct of a solicitation, while the board and its committees generally exercise oversight, and assurance functions may provide independent review. These roles should not be treated as interchangeable.

Best practices

Clarify at the outset which type of solicitation is at issue, and confirm which laws, listing rules, frameworks, or internal policies apply to that specific context before acting.

Confirm applicable requirements by jurisdiction, sector, and entity type rather than assuming a single standard applies, and document the basis for that determination.

Assign clear ownership by distinguishing management's operational responsibility for conducting a solicitation from the board's and committees' oversight role and from independent assurance review.

Ensure that any information communicated to recipients is accurate and complete, and maintain records consistent with the governing requirements and internal retention policies.

Where solicitation could involve requests for improper benefits, apply the organization's anti-bribery and anti-corruption policies and escalate through established compliance channels.

Obtain qualified legal, audit, or compliance advice for fact-specific or jurisdiction-specific questions, treating general educational guidance as a starting point rather than a definitive answer.