There is no specific number of days in which an attorney must wait to send a solicitation letter to a decendent's relative, but the lawyer should consider several factors to decide whether the recipient is likely to exercise reasonable judgment in employing a lawyer. [ER 7.3]

FACTS[1]

An attorney has requested an opinion from the Committee regarding Ethical Rule 7.3(d)(4), which bars direct mail solicitation if a lawyer "knows or reasonably should know that the physical, emotional, or mental state of the person makes it unlikely that the person would exercise reasonable judgment in employing a lawyer."  The attorney would like to contact by direct mail a relative of someone who has recently died in circumstances that potentially may give rise to a wrongful death claim.  According to the attorney's request, the letter would inform the relative about his or her possible need for legal services and the qualifications of the attorney's firm.  The attorney solicits the Committee's opinion as to how long after the death the attorney should wait before contacting the relative by mail.

For the purposes of this opinion, it is assumed that the attorney is not related to the decedent or the decedent's relative, and has had no prior professional relationship with either.  It also is assumed that the letter's content conforms in all respects to the requirements of Ethical Rule 7.3.

QUESTION PRESENTED

Following the death of a person, how long must an attorney wait before he or she may ethically contact by direct mail a surviving relative regarding his or her possible need for legal services and the attorney's qualifications to provide those services?

RELEVANT ETHICAL RULES

ER 7.3  Direct Contact with Prospective Clients

            (b)        subject to all of the requirements of these rules concerning communications and advertising and the specific additional requirements of this section, a lawyer may initiate written communication, not involving personal or telephone contact, with persons known to need legal services of the kind provided by the lawyer in a particular matter, for the purpose of obtaining professional employment . . . .

* * * * *

            (d)        A lawyer shall not send, or knowingly permit to be sent, on behalf of himself, his firm, his partner, an associate, or any other lawyer affiliated with him or his firm a written communication to a prospective client for the purpose of obtaining professional employment if:

* * * * *

                        (4)        the lawyer knows or reasonably should know that the physical, emotional, or mental state of the person makes it unlikely that the person would exercise reasonable judgment in employing a lawyer.

DISCUSSION

Ethical Rule 7.3(b) expressly authorizes lawyers to solicit potential clients by mail, subject to the restrictions contained elsewhere in the Ethical Rules.  One of those restrictions is set forth in Ethical Rule 7.3(d)(4), which prohibits a lawyer from knowingly allowing a solicitation to be made if he or she "knows or reasonably should know that the physical, emotional, or mental state of the person makes it unlikely that the person would exercise reasonable judgment in employing a lawyer."

That restriction undoubtedly is implicated when a lawyer wishes to contact a relative of a person who has recently died in an accident or disaster.  Anyone who has suffered the loss of a close family member can appreciate that the emotional trauma associated with such a loss may temporarily impair the judgment of family members to make decisions affecting their legal rights.  One obvious purpose of Ethical Rule 7.3(d)(4) is to guard against overreaching by a lawyer at a time when a decedent's family is most vulnerable. It also serves to prevent a lawyer form compounding the suffering of a family by an intrusive and unwelcome solicitation, which harms not only the family but also the reputation of every member of the Bar.  See Florida Bar v. Went For It,       U.S.      , 115 S. Ct., 2371, 2376-77, 132 L. Ed. 2d 541 (1995) (recognizing that a state bar association has a substantial interest in the protection of potential clients' privacy).

Presumably, any impairment of judgment associated with the loss of a family member will diminish with time.  At issue is how long a lawyer must wait before he or she may no longer reasonably presume that the relative would be "unlikely" to be able "to exercise reasonable judgment in employing a lawyer."  ER 7.3(d)(4).

Ethical Rule 7.3 itself provides no "bright line" rule.  In contrast to the ethical rules in at least one other jurisdiction, Ethical Rule 7.3(d)(4) does not prescribe a definite, fixed waiting period following an accident or disaster before an attorney may ethically contact a victim's relatives concerning their possible legal remedies.  Compare with Rules Regulating the Florida Bar, Rule 4-7.4(b)(1) (establishing a mandatory 30-day waiting period before a lawyer may contact, by direct mail, a targeted potential client regarding a wrongful death or personal injury action).

Nor is the absence of a "bright line" rule an oversight in drafting.  In early 1990, the State Bar of Arizona's Board of Governors considered and rejected an amendment to Ethical Rule 7.3, proposed by the Bar's Ad Hoc Advertising Committee, that would have banned targeted, direct mail solicitation of a potential client or his or her family for 30 days following an accident, injury, or death. Terrance C. Mead, Writing the Law of Lawyer Advertising, 23 Ariz. St. L. J. 191, 206 (1991).  In its place, the Board of Governors proposed, and the Arizona Supreme Court approved, the version of Ethical Rule 7.3 now in effect.

As written, Ethical Rule 7.3(d)(4) adopts a case-specific standard requiring lawyers to assess carefully the likely impact of solicitation upon a member of the decedent's family and the likelihood that the family member can exercise reasoned judgment about retaining counsel.  This inquiry has both subjective and objective components:  a lawyer is chargeable with not only what he or she actually knows about a family member's particular sensitivities, but also by what he or she should expect as a reasonably prudent lawyer given the circumstances.  See In re Anis, 126 N.J. 448, 599 A.2d 1265, 1270 (N.J.) (interpreting a similar rule as creating an objective test), cert. denied, 504 U.S. 956, 112 S. Ct. 2303, 119 L. Ed. 2d 225 (1992).[2]  Additionally, in evaluating the circumstances, the standard must be "interpreted in terms of laymen's sensitivities, for it is the prospective clients who are to be protected."  2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 7.3:3001 at 891 (1994 Supp.).

Although it is not possible to list every factor that a lawyer should consider, the following appear to be the most important:

            (a)        Any information the lawyer has about the particular sensitivities of the relative:  The Rule holds a lawyer responsible not only for what he or she should reasonably expect, but also for what he or she actually knows about the likely reaction of a family member to a direct mail solicitation.  Because of age, background, emotional make-up, or other factors, some people are more sensitive to the loss of a family member and to direct mail solicitation regarding highly personal matters.  If a lawyer is aware of facts reasonably suggesting that the intended recipient has heightened sensitivity, the lawyer should wait longer before making a mail solicitation.

            (b)        The relationship between the decedent and the family member:  Obviously, the closer the relationship between a family member and the decedent, the longer the interval should be between the decedent's death and the lawyer's solicitation.  For example, one reasonably would expect that a mother grieving over the loss of a child would experience greater judgment-impairing trauma than a long-estranged spouse who has learned of the death of a dimly remembered in-law.

            (c)        The suddenness of death:  The death of a family member is never easy for anyone to accept.  Nonetheless, the sudden death of a family member in an accident is in most cases likely to cause more judgment-impairing trauma following the death than, for example, the long-anticipated death of a family member following a terminal illness.

            (d)        The events surrounding the death:  The more gruesome, or more publicized, the circumstances leading to a decedent's death, the more likely it is that a family member's judgment would be impaired following a death.

            (e)        Whether the family member witnessed the death or participated in the events leading to the death:  It is reasonable to expect that a family member's trauma is likely to be greater if he or she witnessed or participated in the events leading to a decedent's death.  For example, a parent witnessing a child's death in a hit-and-run accident is likely to suffer greater judgment-impairing trauma than a person who learns that a relative has died in a hospital in a distant city.

Given the case-specific focus of the Rule and Arizona's specific rejection of a "bright line" standard, it is not possible to translate these factors into definite "safe harbor" waiting periods.  However, it should be noted that two prominent commentators have suggested that "an interval of a month would usually be appropriate" unless the exigencies of a case required a "briefer interval."  2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering, § 7.3:3001 at 891 (1994 Supp.).   Additionally, in interpreting a virtually identical ethical rule and after calling for further investigation of the issue to define a more precise standard, the New Jersey Supreme Court promulgated an interim rule prescribing a two-week waiting period, absent any case-specific indications that the period should be longer.  See Anis, 599 A.2d at 1271.[3]  While these suggested and interim waiting periods offer some guidance, the Committee has too little experience with the issue to conclude that either is appropriate in all or most circumstances.

One other issue is whether a lawyer may consider the likelihood that the family member may unwittingly compromise his or her legal rights absent timely legal advice.  Following an accident or disaster, a decedent's family may be besieged by insurance adjusters, potential defendants, and their lawyers seeking quick settlements.  Unless timely legal advice is offered, a decedent's family may make ill-advised and uninformed legal decisions that it will later regret.

Although these considerations have merit, nothing in the Rule's text suggests that a lawyer may take them into account.   The exclusive focus of the Rule is on the lawyer's objective evaluation of a family member's ability to exercise judgment about retaining a lawyer.  If a lawyer knows or should know that the person's judgment is likely to be impaired, the Rule's text does not excuse a solicitation because the lawyer fears that the family member's judgment will be overborne by others.  Creating an exception to the Rule in such circumstances also would jeopardize general adherence to the Rule's restriction; virtually any solicitation could be justified by a reasonable belief that the family may be contacted by others regarding the legal consequences arising from a family member's death.

Last, given the limits of this Committee's jurisdiction, the Committee expresses no opinion as to the constitutionality of Ethical Rule 7.3(d)(4) as it is interpreted here.  Compare Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 471 (1988) (striking down a Kentucky Bar Association rule banning all targeted, direct mail solicitations as an unconstitutional restriction on commercial speech)  with Florida Bar, 115 S.Ct. at 2381 (upholding as constitutional Florida Bar Association restriction banning direct mail solicitation for a 30-day period following an accident or injury).

CONCLUSION

The attorney's inquiry does not provide sufficient information to permit the Committee to offer an opinion as to how long the requesting attorney should wait before contacting the decedent's relative by mail.  The attorney should consider the factors discussed in this opinion and make an assessment of the likely impact of a solicitation upon a member of the decedent's family and the likelihood that the family member can exercise reasoned judgment about retaining counsel.  After making this assessment, the attorney may contact the relative by mail only if he or she may reasonably presume that the relative is not "unlikely" to be able "to exercise reasonable judgment in employing a lawyer." ER 7.3(d)(4).