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AN ATTORNEY MAY SOLICIT LEGAL BUSINESS FOR PECUNIARY GAIN BY SENDING
TRUTHFUL AND NONDECEPTIVE LETTERS TO PROSPECTIVE OR POTENTIAL CLIENTS
KNOWN TO FACE PARTICULAR LEGAL PROBLEMS, SUBJECT TO THE REQUIREMENTS
OF THE CODE OF PROFESSIONAL RESPONSIBILITY CONCERNING WRITTEN COMMUNICATIONS.
FACTS
An attorney asks whether he may ethically send letters directly
to prospective or potential clients if the letters seek to solicit
business from those prospective or potential clients based on legal
problems the prospective or potential clients are known to face.
DISCUSSION
DR 2-101(B) of the Code of Professional Responsibility generally
allows such written communications.
DR 2-101 provides:
"(A) 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:
(1) Contains a material misrepresentation
of fact or law, or omits a fact necessary to make the statement
considered as a whole not materially misleading;
(2) 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
(3) Compares the lawyer's services with other
lawyers' services, unless the comparison can be factually substantiated.
(B) Subject to the requirements of DR 2-101(A)
and DR 2-104(B), a lawyer may advertise services through public
media, such as a telephone directory, legal directory, newspaper
or other periodical, radio or television, or through written communication
not involving personal contact. A copy or recording of an advertisement
or written communication shall be kept for one year after its dissemination
along with a record of when and where it was used.
(C) If a lawyer advertises a fee for a service,
the lawyer must render that service for no more than the fee advertised.
(D) Unless
otherwise specified in the advertisement, if a lawyer publishes
fee information in a publication that is published more frequently
than one time per month, the lawyer shall be bound by any representation
made therein for a period of not less than 30 days after such publication.
If a lawyer publishes fee information in a publication that is published
once a month or less frequently, he shall be bound by any representation
made therein until the publication of the succeeding issue. If a
lawyer publishes fee information in a publication which has no fixed
date for publication of a succeeding issue, the lawyer shall be
bound by any representation made therein for a reasonable period
of time after publication but in no event less than one year.
(E) Unless
otherwise specified, if a lawyer broadcasts fee information, the
lawyer shall be bound by any representation made therein for a period
of not less than 30 days after such broadcast.
(F) On
the front of each envelope in which an advertisement of a lawyer
is mailed or delivered or on the front of each post card, if the
advertisement is printed on a post card, shall be placed the words:
'This is an advertisement.' These words shall be printed in type
size at least as large as the print of the address and shall be
located in a conspicuous place on the envelope or card."
DR 2-104(B) precludes a lawyer from sending a written communication
to a prospective client for the purpose of obtaining professional
employment if:
"(1) The lawyer knows or reasonably
should know that the physical, emotional, or mental state of the
person is such that the person could not exercise reasonable judgment
in employing a lawyer;
(2) The person has made known to the lawyer
a desire not to receive the communications from the lawyer; or
(3) The
communication involves coercion, duress or harassment."
Subject to the two limitations quoted above, lawyers are not prohibited
from sending written communications to prospective clients in an
attempt to advertise services, as long as the communication does
not involve "personal contact." The Committee is of the
opinion that sending letters directly through the mail and addressing
them to particular identified potential clients is a "written
communication," and does not constitute "personal contact"
within the meaning of DR 2-101(B).
This finding is in accord with the United States Supreme Court opinion,
Shapero v. Kentucky Bar Ass'n, 108 S. Ct. 1916 (1988), which discusses
direct solicitation of legal business from prospective clients by
letters. In Shapero, the Supreme Court struck down the decision
by the Kentucky Supreme Court which held that "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 significant motive for the
lawyer's doing so is the lawyer's pecuniary gain." See id.
at 1920.
The Shapero opinion focuses on the first amendment rights of the
attorney versus the concern that the particular potential client
will feel "undue influence" whether to seek legal assistance
on a matter, and if so, what attorney he should seek. Id. at 1922.
The State of Kentucky had argued that this case was "Ohralik
in writing." The reference is to the opinion Ohralik v. Ohio
State Bar Ass'n, 436 U.S. 447 (1978), in which the Court found states
could constitutionally ban "in-person solicitation by lawyers
for profit." Id. at 1921. The Court distinguished Ohralik,
however, because Shapero involved letters mailed directly to potential
clients, not in person solicitation.
In assessing the potential for overreaching and undue influence,
the mode of communication makes all the difference. Our decision
in Ohralik . . . turned on two factors. First, was our characterization
of face-to-face solicitation as 'a practice rife with possibilities
for overreaching, invasion of privacy, the exercise of undue influence,
and outright fraud.' . . . Second, 'unique . . . difficulties' .
. . would frustrate any attempt at state regulation of in-person
solicitation short of an absolute ban because such solicitation
is 'not visible or otherwise open to public scrutiny.'
Id.
at 1922. (citations omitted). According to the Court, these factors
were not present in direct mail solicitation, and thus the Ohralik
ban was inapplicable.
Although the Advisory Committee does find that attorneys may send
letters directly to prospective or potential clients with known
legal difficulties in the hopes of procuring for-profit employment,
this ability is not without limits. In accordance with DR 2-101(A),
these statements cannot be "false or misleading" as defined.
Caution should also be exercised by attorneys to ensure that DR
2-104(B) is not violated. If the attorney knows or reasonably should
know that the potential client suffers from a physical, emotional,
or a mental state which hampers his or her ability to exercise reasonable
judgment, or the person has indicated to the attorney that he or
she does not wish to receive any type of communication from the
attorney, or the communication involves coercion, duress, or harassment,
such a written communication is not allowed under the Code of Professional
Responsibility.
Additionally, attorneys should heed DR 2-101(F). If an attorney
advertisement is sent through the mail, or delivered, the front
of each envelope or postcard carrying the advertisement shall bear
the following words: "This is an Advertisement." The words
shall be printed in a type size at least as large as the print of
the address and shall be located in a conspicuous place on the envelope
or card.
Finally, attorneys are reminded that pursuant to DR 2-101(B), a
copy of whatever advertisement or communication is sent out must
be kept by the attorney mailing the material out, for one year from
date of mailing. In addition to keeping a copy of the letter, the
attorney is responsible for maintaining records of when and where
the materials were used.
CONCLUSION
An attorney may solicit legal business for pecuniary gain by sending
truthful and nondeceptive letters to prospective or potential clients
known to face particular legal problems, subject to the requirements
of the Code of Professional Responsibility concerning written communications.
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