90-08: Communication Concerning Services; Advertising

8/1990

Announcement letter of attorney who is counsel to governmental agency upon leaving his position to enter private practice.

FACTS

The inquiring attorney is counsel to a governmental agency. He is leaving his position to enter private practice. He wishes to send a letter to in-house counsel who are members of the Corporate Counsel Section of the County Bar Association. The proposed letter would inform the recipient that the attorney is entering private practice. It would describe the attorney's primary area of practice and his experience in that area. Enclosed with the letter would be copies of recent articles which further describe his area of practice. The letter would encourage recipients to learn more about the area of practice, and would announce the attorney's availability to be of service.

QUESTION

Does the term "prospective clients" in ER 7.2(e) of the Arizona Rules of Professional Conduct include in-house counsel who are members of the Corporate Counsel Section of the County Bar Association, thus requiring placement of the word "Advertisement" on the letters sent to the counsel?

ETHICAL RULES CITED

ER 7.1. Communications Concerning a Lawyer's Services

ER 7.2. Advertising

ER 7.3. Direct Contact with Prospective Clients

OPINION

The proposed letter would constitute a general mailing. It would not be sent to persons known to need legal services of the kind provided by the attorney. Hence, ER 7.3 is not applicable.

ER 7.2(e) requires that "[w]ritten communications to prospective clients for the purpose of obtaining professional employment" be plainly marked "Advertisement,” and that the responsible attorney retain a copy for three years. One likely reason for the labeling requirement is to prevent alarming the recipients of the letters who might be distressed by receiving a written document from an attorney. See our Opinion No. 88-07 (September 13, 1988) at 6, noting the United States Supreme Court's opinion in In re R.M.J., 455 U.S. 191, 102 S. Ct. 929, 71 L. Ed. 2d 64 (1982). In In re R.M.J., the Court suggested that the labeling requirement may be a sufficiently narrow means of regulating advertising in order to prevent such alarm (102 S. Ct. at 938, n.20). In our Opinion No. 88-07, however, we found that this requirement did not apply to a firm's seminar brochure because, in that case, there was no possibility of causing such alarm. Opinion No. 88-07 at 6. Similarly, it is unlikely that fellow lawyers would be alarmed by receiving the letter proposed here. Attorneys are certainly not unaccustomed to receiving correspondence from other attorneys.

Information designed to reach other attorneys generally has not been required to meet the same level of regulation as other informational advertisements sent to non-attorneys. One example is professional announcements that may be circulated to other attorneys, as well as to former clients, present clients, personal friends and relatives, without meeting the requirements of ER 7.2 and ER 7.3. See our Opinion No. 90-04 (March 6, 1990) at 8. Additionally, it has been held that restrictions regarding direct solicitation under former Model Rule 7.3 (the Model Rule in effect prior to the United States Supreme Court's opinion in Shapero v. Kentucky Bar Association, 486 U.S. 466, 108 S. Ct. 1916, 100 L. Ed. 2d 475 (1988)) did not apply to advertisements aimed at other attorneys. See ABA Informal Opinion 84-1504 (January 10, 1984). There, as here, an attorney was leaving government practice for private practice and wished to mail informational letters to in-house counsel. The A.B.A. Standing Committee on Ethics and Professional Responsibility found that former Model Rule 7.3 did not prohibit such communications because they were general and not directed at those known to need legal services in a particular matter. It also found that former Model Rule 7.3 did not prohibit solicitation of professional employment from lawyers "in their capacities as representatives of prospective clients as distinguished from their capacities as individuals in need of personal legal services." The A.B.A. committee noted that "[T]he potential for harm [in direct solicitation] ordinarily is absent where the solicitation is directed solely to other lawyers, who are capable of analyzing the background of the lawyer, and the benefits which might be afforded their own clients through the use of the lawyer's services." This same rationale also eliminates the need for restrictions on written communications to attorneys under ER 7.2(e). While this committee is not bound by the reasoning and conclusions of the A.B.A. committee, we generally regard them as highly persuasive precedent in our resolutions of identical or analogous ethical questions.

Based on the foregoing, we are of the opinion that ER 7.2(e) does not require that the word "Advertisement" be placed on the proposed letters. The rationale for such a labeling requirement is not present when the letter is being sent solely to fellow attorneys.

The proposed letter must, of course, comply with ER 7.1 and not contain any false or misleading information, and a copy of the letter must be kept for three years after its last dissemination along with a record of when and to whom the letter was sent. ER 7.2(b).

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.