91-06: Communications Concerning Services; Advertising

3/1991

Law firm may mail to members of public a vinyl wallet embossed with law firm's name intended to hold checklist describing what a person should do after being involved in an automobile accident.

FACTS

Through direct mail, the inquiring attorney intends to send to the public the following items: (1) a brochure describing his law firm; (2) a checklist generally describing what a person should do in case he or she is involved in an automobile accident; and (3) a vinyl wallet embossed with the law firm's name. The wallet is intended to hold the checklist and is to be placed in the glove compartment of the recipient's automobile.

The inquiring attorney advises that the direct mail advertisements will be plainly marked "Advertisement" on the face of the envelope and at the top of each page of the written communication, as required by ER 7.2(e)(1). The inquiring attorney is concerned primarily with the question as to whether his providing the checklist and wallet as parts of his advertising mailing constitutes "giv[ing] anything of value to a person for recommending the lawyer's services . . .," prohibited to Arizona attorneys by ER 7.2(c).

QUESTION

Does the proposed advertising plan described comply with the Arizona Rules of Professional Conduct?

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. 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 (as amended 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.

(c) A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may pay the reasonable cost of advertising or written communication permitted by this rule and may pay the usual charges of a not-for-profit lawyer referral service or other legal service organization.

(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.

ER 7.3. Direct Contact With Prospective Clients (as amended August 1, 1989)

*****

(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. 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.

*****

RELEVANT PRIOR ARIZONA OPINION

Opinion No. 89-09 (November 6, 1989)

OPINION

In our Opinion No. 89-09 (November 6, 1989), we reviewed three attorneys' proposed targeted direct mailings to prospective clients. We concluded that targeted direct mailings to prospective clients are constitutionally protected, and that the type of written communications proposed by the three attorneys was ethically permissible. We also concluded, however, that portions of the written communications were false and misleading under ER 7.1, or constituted overreaching under ER 7.2(f)(3), and that the proposed targeted direct mailings must be redrafted in accordance with the opinion. The reader is referred to that opinion.

Here, the brochure and checklist -- the written communications -- will be plainly marked "Advertisement" on the face of the envelope and at the top of each page of the written communications, in accordance with ER 7.2(e)(1). Note that ER 7.3(b) does not apply, since these communications are not being directed to "persons known to need legal services of the kind provided by the lawyer in a particular matter." The inquiring attorney's direct mail advertisements are to be sent to members of the general public.

The inquiring attorney is concerned primarily with whether his providing the checklist and wallet as parts of his advertising mailing constitutes "giv[ing] anything of value to a person for recommending the lawyer's services . . .," prohibited to Arizona attorneys by ER 7.2(c). We conclude that it is not. ER 7.2(c) provides in part that:

A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may pay the reasonable cost of advertising or written communication permitted by this rule .... (emphasis added)

ER 7.2(c) is intended to prohibit payments to "touts," "shills," "runners," and others who receive compensation for the actual "recommendation" itself. See 2 Hazard & Hodes, The Law of Lawyering (2d ed. 1990), § 7.2:401, at 871. It is, by its terms, not intended to prohibit payments by an attorney of the reasonable costs of advertising or written communication permitted by the rule which is sent to one who, if the advertising is successful, will become the attorney's client. The proposed advertising here is not being sent to specific individuals with the intent that they will "tout" the attorney to others. It is being sent to members of the general public with the intent that the recipients will retain the attorney if and when they have need of an attorney. The attorney may pay the reasonable cost of the advertising proposed here and not run afoul of ER 7.2(c).

This committee has not previously addressed one type of advertising medium (vinyl wallet embossed with the law firm's name) proposed by the inquiring attorney. ER 7.2(a) reads that: “[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.” (emphasis added). The list is not intended to be exclusive. Although not expressly referred to in other states' professional ethics codes, other forms of advertising have been held permissible. See Alabama State Bar Ethics Opinion 86-117 (11/21/86) (ABA/BNA Lawyers' Manual on Professional Conduct, p. 901:1014) (lawyer specializing in social security law may advertise on public bench located outside of social security office provided advertisement complies with Code's provisions on advertising); Illinois State Bar Association Ethics Opinion 812 (12/4/82) (ABA/BNA Lawyers' Manual, supra, p. 801:3015) (law firm may advertise on pens of nominal value distributed to clients); State Bar of Michigan Informal Opinion CI-1121 (2/25/86) (ABA/BNA Lawyers' Manual, supra, p. 901:4751) (lawyer may advertise on labels on inside covers of law books contributed by him to a jail library provided the advertising matter is not false, fraudulent, misleading or deceptive); New Jersey Advisory Committee on Professional Ethics Opinion 594 (10/29/86) (ABA/BNA Lawyers' Manual, supra, p. 901:5804) (law firm may allow its name to be used in a dignified manner on shirts of local children's athletic team if in compliance with Code's provisions on advertising); Ohio State Bar Association Opinion 87-2 (6/22/87) (ABA/BNA Lawyers' Manual, supra, p. 901:6826) (law firm may distribute a brochure about the firm if information set forth is accurate, can be factually substantiated, and is not misleading); State Bar of Texas Opinion 427 (undated - late 1984 or early 1985) (ABA/BNA Lawyers' Manual, supra, p. 801:8306) (law firm may pay to advertise its name, address, and telephone number on a plastic telephone book cover and on a city map indicating the firm's office location which are mailed to new community residents, provided the information is not false or misleading).

We conclude that advertising the inquiring attorney's firm name on a vinyl wallet is advertising through "public media," and is permissible so long as the advertising complies with the requirements of ER 7.1, other rules of professional conduct, and the committee opinions interpreting those rules.

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.