Attorney using direct mailing to contact individuals with known legal problems, to inform them that they may have causes of action.
FACTS
The inquiring law firm requests an opinion on the ethical propriety of making direct mailings targeted at individuals with specific legal problems. An example of such a targeted group would be persons who have filed complaints with governmental agencies.
The purpose of the mailings would be to inform the individuals that they may have causes of action and to inform them of the available services of the attorneys in the law firm. In addition, the proposed mailings would offer such persons free consultations to discuss their specific legal problems with the possibility in view of their retaining the firm to pursue their claims.
The inquiring law firm states that the direct mailings would not be false, deceptive or misleading, and that there would be no in-person solicitation prior to the prospective client contacting the firm in response to the direct mailing.
QUESTION
Is it ethically proper for a law firm to make direct mailings targeted at individuals with specific legal problems in order to:
ETHICAL RULES INVOLVED
ER 7.1. Communications Concerning a Lawyer's Services
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services.
ER 7.2. Advertising
(a) Subject to the requirements of ER 7.1, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor, radio or television, or through written communication not involving solicitation as defined in ER 7.3.
ER 7.3. Direct Contact with Prospective Clients
A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship by mail, in person, or otherwise, when a motive for the lawyer's doing so is the lawyer's pecuniary gain. The term "solicit" includes contact in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful.
OPINION
ER 7.2 specifically permits the advertising of a lawyer’s services through public media ..... or through written communication not involving solicitation as defined in ER 7.3." ER 7.1 prohibits a lawyer from making “false or misleading" communications about the lawyer's services. Finally, ER 7.3 stresses that "written communication" cannot be for “pecuniary gain" or directed to a “specific recipient...known to need legal services of the kind provided by the lawyer in a particular matter."
Clearly, a lawyer in Arizona may, with limitations, engage in advertising. Generally, these limitations are determined by the state. “The interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been officers of the courts'". Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 95 S. Ct. 2004, 44 L. Ed. 2d 572 (1975); Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 460, 98 S. Ct. 1912, 56 L. Ed. 28 444 (1978). A state's interest is especially elevated "when the particular content or method of advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse ...." In Re RMJ, 455 U.S. 191, 203, 102 S. Ct. 929, 71 L. Ed. 2d 64 (1982).
Relying on the cited decisions, it is apparent that, although the public has a right to receive information, the state has a right to define the acceptable parameters of dispersal.
The inquiring firm's intentions appear clearly to exceed the nature and type of advertising contemplated by ER 7.2. Despite the fact that the law firm has no intention of violating ER 7.1, ER 7.3 expressly prohibits the kind of advertising described herein. Among the inherent problems with direct contact or targeted mailings is, indeed, the potential for abuse in the form of misleading the client through overreaching by the attorney.
A prospective client, feeling overwhelmed by the particular legal problem addressed in the firm's letter:
"... may have an impaired capacity for reason, judgment and protective self-interest. Furthermore, the lawyer seeking the retainer is faced with a conflict stemming from the lawyer's own interest, which may color the advice and representation offered the vulnerable prospect.
"The situation is therefore fraught with the possibility of undue influence, intimidation, and overreaching.* * *" Comment to ER 7.3.
Consequently, these targeted mailings are necessarily violate of ER 7.1, despite all of the law firm's best efforts to comply with the Rule.
Another problem with direct solicitations is that they cannot be effectively regulated. "One proposed safeguard is to require that the designation 'Advertising' be stamped on any envelope containing a solicitation letter. This would do nothing to assure the accuracy and reliability of the contents. Another suggestion is that solicitation letters be filed with a state regulatory agency." Comment to ER 7.3, and see, in Arizona, ER 7.2(e) (1). However, the resources of these agencies are often so limited that they could not effectively monitor each proposed solicitation letter.
Therefore, although "individuals are less subject to harassment, overreaching and duress through mailings than they are through direct personal contact" as is contended in Adams v. Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois, 801 F.2d 968, 973 (7th Cir.1986), there appears to be no truly effective way to safeguard against abuse. The “potential for abuse inherent in direct solicitation of prospective clients justifies its prohibition, particularly since lawyer advertising permitted under ER 7.2 offers an alternative means of communicating necessary information to those who may be in need of legal services." Comment to ER 7.3.
The inescapable conclusion concerning the motives of the inquiring law firm is that “a motive" behind the proposed targeted mailings is an expectation of some pecuniary gain to be realized as a result of the mailings. Such is explicitly prohibited by ER 7.3.
In conclusion, notwithstanding all reasonable attempts by the firm to avoid misleading and overreaching, as required by ER 7.1, it would be ethically improper for a law firm to make direct mailings targeted at individuals with specific legal problems. Consequently, we answer the questions presented in the negative.
Editor's Note
One member of the committee, joined by a second, commented:
I concur in the conclusion reached by (the draftsman of the opinion). However, I believe that (his) opinion should make some mention of the recent opinion of the United States Supreme Court in Zauderer v. Office of Disciplinary Counsel, 105 S. Ct. 2265 (1985), and distinguish that case from the instant case. The difference between Zauderer and the instant case is discussed in the comment to ER 7.3, and reference to the comment would clarify what is permissible under Zauderer and impermissible under ER 7.3.
Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.
© State Bar of Arizona 1987