90-04: Advertising

3/1990

Lawyer publishing and sending professional announcement to other lawyers, present or former clients, friends and relatives.

FACTS

The inquiring attorney asks about the propriety of mailing to members of the bar and others a professional announcement regarding his election to membership in an association of matrimonial attorneys and his availability for referral, consultation, and association in cases involving that area of the law. He also asks whether it is permissible to print the announcement in various bar association publications.

QUESTION

Do the advertising restrictions of Ethical Rules 7.2 and 7.3 (as amended effective August 1, 1989), in effect in Arizona, apply to professional announcements?

SUMMARY OF OPINION

So long as a professional announcement is not false or misleading under Ethical Rule 7.1, and is sent only to other attorneys, present clients, former clients, personal friends and relatives, and not to prospective clients, or, if published, is only published in legal journals, the requirements of ER 7.2. and ER 7.3 do not apply.

ETHICAL RULES CITED

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. A communication is false or misleading if it:

(a) contains a material representation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;

(b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the rules of professional conduct or other law; or

ER 7.2. Advertising (amended effective August 1, 1989)

(a) Subject to the requirements of ER 7.1 and ER 7.3, 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.

(b) A copy or recording of an advertisement or written communication shall be kept for three years after its last dissemination along with a record of when and where it was used.

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(d) Any communication made pursuant to this rule shall include the name of at least one lawyer responsible for its content.

(e) Written communications to prospective clients for the purpose of obtaining professional employment are subject to the following requirements:

(1) Such written communications shall be plainly marked "Advertisement" on the face of the envelope and at the top of each page of the written communication in type no smaller than the largest type used in the written communication; and

(2) A copy of each such written communication shall be retained by the lawyer for three years. If written communications identical in content are sent to two or more prospective clients, the lawyer may comply with this requirement by retaining a single copy together with a list of the names and addresses of persons to whom the written communication was sent.

(f) 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:

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(4) The communication is otherwise improper under ER 7.1.

ER 7.3. Direct Contact with Prospective Clients (amended effective August 1, 1989)

(a) A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship in person or by telephone, when a motive for the lawyer's doing so is the lawyer's pecuniary gain.

(b) Subject to the requirements of ER 7.1 and ER 7.2, and paragraph (c) herein, 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. Such written communication shall be clearly marked on the envelope and on the first page of the communication contained in the envelope as follows:

ADVERTISING MATERIAL

THIS COMMERCIAL SOLICITATION HAS NOT BEEN

APPROVED BY THE STATE BAR OF ARIZONA

Said notification shall be printed in red ink, in all capital letters, in type size at least double that used in the body of the communication. ***

(c) At the time of dissemination of such written communication, a copy shall be forwarded to the Clerk of the Arizona Supreme Court and the State Bar of Arizona at its Phoenix office. If a written communication identical in content is to two or more prospective clients, the lawyer may comply with this requirement by forwarding a single copy together with a list of the names and addresses of persons to whom the written communication was sent.

FORMER CODE PROVISIONS CITED

DR 2-101. Publicity.

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(B) In order to facilitate the process of informed selection of a lawyer by potential consumers of legal services, a lawyer may publish or broadcast the following information in print media distributed or over television or radio broadcast in the geographic area or areas in which the lawyer resides or maintains offices or in which a significant part of the lawyer's clientele resides, provided that the information disclosed by the lawyer in such publication or broadcast complies with DR 2-101(A), and is presented in a dignified manner:

(1) Name, including name of law firm and names of professional associates; addresses and telephone numbers;

(2) One or more fields of law in which the lawyer or law firm practices, a statement that practice is limited to one or more fields of law, or a statement that the lawyer or law firm specializes in a particular field of law practice, to the extent authorized under DR 2-105;

(3) Date and place of birth;

(4) Date and place of admission to the bar of state and federal courts;

(5) Schools attended, with dates of graduation, degrees and other scholastic distinctions;

(6) Public or quasi-public offices;

(7) Military service;

(8) Legal authorships;

(9) Legal teaching positions;

(10) Memberships, offices, and committee assignments, in bar associations;

(11) Membership and offices in legal fraternities and legal societies;

(12) Technical and professional licenses;

(13) Memberships in scientific, technical and professional associations and societies;

(14) Foreign language ability;

(15) Names and addresses of bank references;

(16) With their written consent, names of clients regularly represented;

(17) Prepaid or group legal services programs in which the lawyer participates;

(18) Whether credit cards or other credit arrangements are accepted;

(19) Office and telephone answering service hours;

(20) Fee for an initial consultation;

(21) Availability upon request of a written schedule of fees and/or an estimate of the fee to be charged for specific services;

(22) Contingent fee rates subject to DR 2-106(C), provided that the statement discloses whether percentages are computed before or after deduction of costs;

(23) Range of fees for services, provided that the statement discloses, in print size equivalent to the largest print used in setting forth the fee information, that the specific fee within the range which will be charged will vary depending upon the particular matter to be handled for each client and that the client is entitled without obligation to an estimate of the fee within the range likely to be charged:

(24) Hourly rate, provided that the statement discloses, in print size at least equivalent to the largest print used in setting forth the fee information, that the total fee charged will depend upon the number of hours which must be devoted to the particular matter to be handled for each client and that the client is entitled without obligation to an estimate of the fee likely to be charged;

(25) Fixed fees for specific legal services, the description of which would not be misunderstood or be deceptive, provided that the statement discloses, in print size at least equivalent to the largest print used in setting forth the fee information, that the quoted fee will be available only to clients whose matters fall into the services described and that the client is entitled without obligation to an estimate of the fee likely to be charged.

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DR 2-102. Professional Notices, Letterheads, Offices and Law Lists.

(A) A lawyer or law firm shall not use professional cards, professional announcement cards...or similar professional notices or devices, except that the following may be used if they are in dignified form:

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(2) A brief professional announcement card stating new or changed associations...or similar matters pertaining to the professional office of a lawyer or law firm, which may be mailed to lawyers, clients, former clients, personal friends, and relatives...

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DR 2-105. Limitations of Practice.

(A) A lawyer shall not hold himself out publicly as a specialist, as practicing in certain areas of the law or as limiting his practice permitted under DR 2-101(B) or DR 2-102(A) 15), except as follows:

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(3) A lawyer specializing in a particular field of law or law practice may hold himself out as such specialist but only in accordance with the rules as prescribed by the Arizona Board of Legal Specialization.

ETHICS OPINIONS CITED

Arizona Opinions Nos. 70-32 (Dec. 28, 1970) and 74-11 (April 15, 1974).

CASES CITED

In re R.M.J., 455 U.S. 191, 102 S. Ct. 929, 71 L. Ed. 2d 64 (1982)

Shapero v. Kentucky Bar Association,____U.S.____, 108 S. Ct. 1916, 100 L. Ed. 2d 475 (1988)

OPINION

Prior to February 1, 1985, when Arizona followed the Code of Professional Responsibility, lawyers' professional announcements were distinguished from other lawyer communications made by mail. Although the Code generally did not allow communications, or "publicity," by mail regarding a lawyer's services, an exception existed for a “brief professional announcement card stating new or changed associations or addresses, change of firm name, or similar matters." DR 2-102(A) (2). However, such an announcement could be mailed only to "lawyers, clients, former clients, personal friends, and relatives." Id. Announcements of new or changed associations were treated as advertisements (i.e. banned) if they were sent to people other than attorneys, present or former clients, friends or relatives.

DR 2-105(A) (3) (prior to its 1976 amendment) expressly permitted the dissemination of availability announcements to other attorneys and in legal journals circulated substantially within the State of Arizona. Announcements of availability for association or consultation in specific areas of law could be sent only to other attorneys; they were treated as advertising if disseminated to anyone other than an attorney or if published in a legal journal with circulation beyond Arizona. Accordingly, in our Opinion No. 70-32, this committee approved an attorney's sending of an announcement to other attorneys in Arizona indicating the attorney's availability to consult or associate with them in a particular branch of law or legal service. In reaching its opinion, the committee said:

[Three cited Ethical Considerations] reflect the organized bar's concern for the restriction of promiscuous advertising, whether to laymen or to other lawyers. Nevertheless, as a practical matter, the bar cannot overlook the substantial technological progress of modern society and attempt to apply "horse and buggy" rules to situations arising in the modern practice of law. A balance must be struck between the objectives of Canon 2 of the Code of Professional Responsibility and the traditional reservations of our profession against advertising. Accordingly, it is the opinion of this Committee that, under the language of DR 2-105 (A) (3), an attorney may ethically send announcements of his availability to act as a consultant to or as an associate of other lawyers within the State of Arizona in a particular branch of law or legal service, and may publish such an announcement in legal journals distributed wholly or substantially within the State of Arizona.

In our Opinion No. 74-11, we decided that publication of a professional announcement in the American Bar Association Journal was ethically improper because "To permit wholesale dissemination of such announcements to lawyers in other states by a national publication would constitute indiscriminate advertising. . . ."

DR 2-105(A) (3) was amended in 1976 to eliminate those provisions relating to availability announcements. The amended Code of Professional Responsibility, however, continued to distinguish between announcements and other communications made by mail. This distinction became meaningless in light of the U.S. Supreme Court's decision in In re R.M.J., 455 U.S. 191, 102 S. Ct. 929, 71 L. Ed. 2d 64 (1982), in which the Court reversed a state court's imposition of discipline on a lawyer for mailing an announcement of his new office to people who were not clients, former clients, personal friends, or relatives. The Court held that professional announcements, or communications, are constitutionally protected and, because there are less restrictive means of protecting the public, a ban on such mailings to persons other than attorneys, clients and friends is constitutionally impermissible. 455 U.S. at 206-207.

Arizona adopted the Rules of Professional Conduct effective February 1, 1985. The Rules do not distinguish professional announcements of new addresses and associations or of availability for association from other communications regarding a lawyer's services.

Ethical Rules 7.2 and 7.3 were amended on an emergency basis effective August 1, 1989, to delete those provisions prohibiting lawyers from making direct-mail, targeted solicitations of prospective clients. The amended Rules expressly permit such solicitation as long as a copy of the written material is simultaneously filed with the Clerk of the Arizona Supreme Court and the State Bar. The amended Rules conform to the United States Supreme Court's recent decision in Shapero v. Kentucky Bar Association, _____ U.S.____, 108 S. Ct. 1916, 100 L. Ed. 2d 415 (1988), in which the Court held that blanket prohibitions against solicitation violate the First Amendment guarantees of freedom of speech.

The Rules as amended allow the circulation and publication of all professional announcements, subject to the limitations of Ethical Rules 7.1, 7.2, and 7.3. The information contained in any announcement must not be false or misleading as defined in ER 7.1. If the announcement is to be circulated to prospective clients, it must comply with the advertising restrictions set out in ER 7.2(e); i.e., it must be plainly marked "Advertisement" on the face of the envelope and at the top of each page of the announcement, and a copy of the announcement must be retained for three years. If an announcement of availability is sent to persons known to need legal services of the kind provided by the lawyer for the purpose of obtaining professional employment, it must comply with the requirements of ER 7.3 as amended.

Under the Rules, announcements may be circulated without the advertising restrictions to other attorneys, current clients, former clients, personal friends and relatives. Publication of professional announcements in legal journals is not improper as it amounts only to dissemination of information to members of the organized bar. However, we caution that the information must not be false or misleading.

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 proceedings.