90-05: Advertising

6/1990

Law firm's bi-monthly publication on the subject of Arizona construction law mailed to companies and individuals engaged in construction and construction related activities.

FACTS

In December of 1989, the inquiring law firm prepared a six-page publication titled Arizona Construction Law Review. The review contains articles on common legal issues encountered in the construction industry, as well as summaries and analyses of recent decisions by Arizona courts, the Board of Contract Appeals, and the Comptroller General. The review was mailed to more than 350 companies and individuals engaged in construction or construction-related activities throughout the State. The mailing list was compiled from information obtained at the Arizona Registrar of Contractors and the Arizona Chapter of the Associated General Contractors.

The inquiring attorneys intend to publish and distribute the review six times each year, free of charge. Recipients will include Arizona general contractors, subcontractors, and material and equipment suppliers. The inquiring law firm was entirely responsible for the December publication, but intends to solicit articles and notes from other authors for future volumes.

The review includes a title, the text of articles and case comments, and footnotes which provide additional analysis and supporting authority. Contributors to the review, all of whom were attorneys in the December volume, are identified at the beginning of the articles they authored. Footnotes provide short biographical summaries about each author, including the fact that the author is an attorney, the date of the author's graduation from college and law school, jurisdictions where the author is licensed to practice law, and the author's principal areas of practice. These footnotes appear in fine print at the bottom of the page, and do not otherwise contain self-laudatory information. The inquiring law firm has advised this Committee that the review will be prepared and distributed as a service to the construction industry in Arizona, and not for the purpose of obtaining professional employment.

QUESTIONS PRESENTED

1. May the authors mail their publication to non-clients engaged in the construction industry in Arizona?

2. If the publication is mailed to non-clients, must it contain the labels and disclaimers required by ER 7.2(e) and ER 7.3(b)?

RELEVANT ETHICAL RULES

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 misrepresentation 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

(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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(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:

(1) The written communication concerns a specific matter and the lawyer knows or reasonably should know that the person to whom the communication is directed is represented by a lawyer in the matter;

(2) It has been made known to the lawyer that the person does not want to receive such communications from the lawyer;

(3) The communication includes coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence; or

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

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(h) A lawyer shall not accept employment when he knows or it is obvious that the person who seeks his service does so as a result of conduct prohibited under this rule.

ER 7.3 Direct Contact with Prospective Clients

(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 purposes 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. If the solicitation advertises representation on a contingent or "no recovery, no fee" basis, it shall also state that the client may be liable for costs and expenses.

(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 sent to two or more prospective clients, the lawyer may comply with the requirement by forwarding a single copy together with a list of the names and addresses of persons to whom the written communication was sent.

ETHICS OPINIONS CITED

Opinion No. 88-07

Opinion No. 87-23

OPINION

Our current ethical rules permit attorneys to distribute written communications to non-clients, including communications designed to obtain professional employment, provided certain requirements are followed. ER 7.1 prohibits false or misleading communications. ER 7.2(b) requires that copies of advertisements be retained for three years after dissemination, with a record of when and where they are used. ER 7.2(e) requires that communications made "for the purpose of obtaining professional employment" bear the label "Advertisement.” ER 7.2(f) sets forth circumstances under which an attorney may not communicate in writing with a prospective client, and ER 7.3 establishes rules for direct-mail solicitation of persons known to be in need of specific legal services.

The Committee concludes that these rules permit the inquiring law firm to prepare and distribute the Arizona Construction Law Review. We previously have opined that Arizona attorneys may distribute brochures which outline the information to be discussed at seminars sponsored by the publishing attorneys. See Ethics Opinion No. 88-07. Cf. Ethics Opinion No. 87-23. The review to be disseminated in this case is similar. Information that otherwise might be disclosed at a seminar for non-clients is set forth fully in the review. If a brochure which previews seminar-type information may be disseminated by lawyers in Arizona, then certainly the information itself may also be disseminated. The ethical rules thus present no impediment to use of the review, provided the inquiring attorneys otherwise comply with the requirements for written communications with non-clients. The review must contain no false or misleading statement; the inquiring firm must retain copies of the publication for three years after its last dissemination, with a record of when and where it was used; the attorneys must discontinue mailings of the publication if any of the criteria set forth in ER 7.2(f) arise; and the attorneys must otherwise comply with the requirements of the ethical rules. Because the inquiring law firm has represented to this Committee that it intends to comply with these rules, it is the Committee's opinion that the Arizona Construction Law Review may be prepared and disseminated as the attorneys intend.

II.

The remaining question is whether the publication must include the labels and disclaimers of ER 7.2(e) and ER 7.3(b). We begin with ER 7.3.

By its terms, ER 7.3(b) applies only when a lawyer initiates written communication "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." The inquiring attorneys represent that the review will not be sent to persons known to need legal services in a particular matter. The composition of the review would tend to support this assertion. The review provides an informative summary and analysis of issues relevant to the construction industry; it does not openly solicit business from recipients. Nor is the bi-monthly publication schedule timed to coincide with known legal needs of the recipients. Indeed, the inquiring attorneys state that they have no way of knowing when individuals on their mailing lists have particular legal needs. The Committee accordingly concludes that the review is not a solicitation directed at “persons known to need legal services of the kind provided by the lawyer in a particular matter.” The review thus need not include the disclaimer set forth in ER 7.3(b).

ER 7.2(e) provides that written communications to prospective clients "for the purpose of obtaining professional employment" shall "be plainly marked 'Advertisement' on the face of the envelope and on the top of each page of the written communication.” The inquiring law firm asserts that the advertising label is not required in this case because the publication is not being disseminated "for the purpose of obtaining professional employment.” While the Committee has no independent reason to doubt this assertion, the nature of the publication itself would suggest that the inquiring law firm has at least some pecuniary interest in establishing and promoting its reputation in the area of construction law. The Committee concludes, nonetheless, that the disclosure requirements of ER 7.2 (e) do not apply.

In Ethics Opinion No. 88-07, this Committee concluded that the labeling required by ER 7.2(e) does not apply automatically to a brochure prepared and distributed by a law firm for the purpose of describing the contents of a seminar to be sponsored by the law firm. We concluded that such brochures must be analyzed on a case-by-case basis to determine whether, apart from the seminar they announce, they constitute An advertisement for purposes of ER 7.2(e). Guidelines for making this determination were described as follows:

Some guidance for making this (case-by-case) determination is found in Opinion No. 87-23. In particular, "[t]he seminar announcement and other written materials may list the name of the lawyer participant with a short, factual statement of the lawyer's qualifications." Id. at 4. In addition, materials violating either ER 7.1 or ER 7.2(f) should not be distributed by any means, whether or not the seminar otherwise conforms to Committee guidelines.

To summarize, materials announcing a properly conducted seminar which gives short, factual statements of the attorney 's qualifications, and which do not violate ER 7.1 or ER 7.2(f), need not be labeled as advertisements.

See Opinion 88-07 at 7.

The Arizona Construction Law Review contains short, factual statements about its authors’ qualifications. So far as this Committee can determine, it does not violate either ER 7.1 or ER 7.2(f). The inquiring attorneys could have presented the review in seminar form, publicizing the seminar through a brochure which contained the same biographical summaries as the review's footnotes. If such a brochure would not require the advertisement label of ER 7.2(e), as our previous opinion indicates, we see no reason to require such labeling for the review itself. The biographical footnotes in the review appear to be no more deserving of an advertisement label than the disclosures described in Opinion No. 88-07. When combined with the inquiring attorneys' representation that this publication will not be disseminated for the purpose of obtaining professional employment, our Opinion No. 88-07 leads us to conclude that the labeling required in ER 7.2(e) is not necessary in this case.

III.

We find nothing in the inquiring law firm's publication that would violate the ethical rules. The inquiring law firm should of course evaluate this and all future publications in light of the ethical requirements described in this opinion and found elsewhere in Supreme Court Rule 42.

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.