State Bar of Arizona Ethics Opinions
88-07: Communication Concerning a Lawyer's Services; Advertising; Direct Contact with Prospective Clients
Law firm sponsoring legal seminars for clients and non-clients, and mailing brochures to publicize the seminars.
The inquiring law firm plans to hold an eight-week series of seminars on various aspects of the law. Proposed topics range from adoption to compensation planning, and each session is to be taught by attorneys in the firm. A similar series given in the past was "designed to keep [the firm's] clients abreast of current legal issues and recent developments." There is to be no charge for attending any of the seminars. Each will be held at the law firm's offices.
The law firm plans to publicize the seminars by mailing brochures to selected recipients. A brochure used to promote a previous series has been submitted to the Committee for its consideration. Each page of the brochure contains a brief description of one of the eight seminars, followed by more detailed information about the attorney-instructors. Descriptions of the attorneys include explanations of their positions at the firm and summaries of their professional achievements. In the past, the brochures have been sent only to clients. In the future, the firm would like to mail the brochures to non-clients as well.
- Under what circumstances may a law firm conduct legal seminars?
- May a law firm publicize its seminars by mailing brochures to selected non-clients?
- Must brochures mailed to non-clients be labelled as advertisements
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
(c) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated.
ER 7.2. Advertising
(a) Subject to the requirements of ER 7.1, 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 not involving solicitation as defined in ER 7.3.
(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.
(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:
(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;
(4) The communication is prompted by a specific occurrence affecting the person to whom the communication is directed, or a member of his family; or
(5) The communication is otherwise improper under ER 7.1.
ER 7.3. Direct Contact with Prospective Clients
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 motive for the lawyer's doing so is the lawyer's pecuniary gain. The term "solicit" includes contact in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful.
A law firm may present seminars which conform to guidelines promulgated by this committee. See Opinions Nos. 254 (1968), 70-2, 71-20, 71-30, 73-8, 73-10, 73-24, 81-11 and 87-23. This is so even if the firm's motive for conducting the seminar is financial rather than educational. See Opinion No. 87-23 at 4-5.
Over the years the guidelines governing seminars have evolved in response to Supreme Court rulings concerning attorney advertising. Compare Opinion No. 70-2 with Opinion No. 87-23. The committee's most recent guidelines remain valid:
- It is proper for a lawyer to participate in a legitimate seminar on a legal subject as long as the seminar is run in a proper manner.
- Seminar panelists may properly consist of lawyers or lay [persons] or both. Those attending the seminar may properly consist of lawyers or lay [persons] or both.
- A lawyer may properly be paid for participating in a seminar.
- The seminar announcement and other written materials may list the name of the lawyer participant with a short, factual statement of the lawyer's qualifications.
- Where a lawyer or law firm is sponsoring a seminar and advertising it, the advertisement must contain the name of a lawyer responsible for its content. The lawyer must retain a copy and schedule of the advertisement as required by ER 7.2(b).
- The purpose of the seminar must be to inform rather than to give advice. It is improper for an attorney to answer questions of lay [persons] concerning their specific individual problems. Anyone inquiring about specific problems must be admonished to consult an attorney for legal advice.
- Because of problems related to the disclosure of client confidences, because of the potential for solicitation, and because there are certain restrictions on pretrial publicity, no reference should be made to pending cases being handled by the attorney.
Opinion No. 87-23 at 4.
With the possible exception of the fourth guideline above, see infra. pp. 7-8, the committee has no reason to believe that the inquiring firm's seminars will not be in conformance with these guidelines.
Seminars which are properly conducted in conformance with the guidelines in Opinion No. 87-23 may also be publicized in an appropriate manner. Announcements mailed to selected non-clients offer one appropriate medium.
Even before Bates v. State Bar of Arizona, 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977), the ABA permitted modest seminar publicity although the publicity might include qualifications of the participating attorney:
“We recognize that there is an element of advertising in giving the name of the firm, academic degrees, legal affiliations, offices and honors but consider that on balancing of interests the facts mentioned may be stated. Seminars, when properly conducted, are beneficial and their success is in part dependent upon the number of registrants. ***"
ABA Standing Committee on Professional Ethics, Informal Opinion No. 840 (9/23/65).
Similarly, this committee has previously recognized that it is proper to publicize seminars. For example, the committee found that a newspaper advertisement announcing a ten-week class was permissible under the former Canons of Professional Ethics. See Opinion No. 254 (1968). See also Opinion No. 70-26. Under the Code of Professional Responsibility, formerly in effect in Arizona, announcements could be mailed, even to non-clients, so long as the primary object of the seminar was not to "publicize or make money for its sponsor, the lawyer, or others." Opinion No. 71-30 at 3.1
1. Opinion No. 71-30 did not explicitly address the mailings issue. However, the committee found that the seminar, which was to be publicized through mailed invitations, complied with guidelines stated in Opinion No. 70-2. The guidelines contained publicity provisions similar to those in Opinion No. 87-23. Thus, the committee interpreted the guidelines to permit mailed announcements.
The inquiring law firm is concerned about whether ER 7.3 of the Rules of Professional Conduct, which prohibits “solicitation” of professional employment by mailings to nonclients, undermines our previous opinions concerning seminar announcements. We need not tarry over this issue. In Shapero v. Kentucky Bar Association, ___ U.S.___, 108 S. Ct. 1916, ___ L. Ed. 2d___, 56 U.S.L.W. 4532 (June 13, 1988), the Supreme Court ruled that direct-mail advertising, even when aimed at parties involved in specific legal matters, is not subject to blanket prohibition. The Court held that ABA Model Rule 7.3 is unconstitutional to the extent that it categorically prohibits direct-mail advertising. See id. 108 S. Ct. at 1921-1925, 56 U.S.L.W. at 4533-4535.
Therefore, if the seminar itself is conducted in accordance with guidelines previously announced by this committee, the law firm may mail appropriate promotional brochures to non-clients.
The question remaining is whether brochures mailed to non-clients must be labelled as "advertisements" in accordance with ER 7.2(e) (1).2 We hold that neither the language nor the purpose of ER 7.2 compels such a result.
2. While Shapero disallowed a complete ban on direct-mail advertising, regulation short of prohibition may still be proper: “The State can regulate such abuses and minimize mistakes through far less restrictive and more precise means, . . . ." 108 S. Ct. at 1923, 56 U.S.L.W. at 4534. The Court also indicated that a labelling requirement may be appropriate in certain situations. 108 S. Ct. at 1924, 56 U.S.L.W. at 4535.
The labelling requirement of ER 7.2(e) applies to '[w]ritten communications to prospective clients for the purpose of obtaining professional employment" (emphasis added). In our view, an advertisement simply promoting a seminar is different from an advertisement promoting an attorney. While the purpose of the latter is solely to generate business, the purpose of the former is usually merely to publicize the seminar. Cf. Opinion No. 70-26 (attorney's name in a newspaper announcement of a seminar did not appear for the sole purpose of publicizing the attorney). This is most clearly true where the seminar is designed solely to provide information to the public, such as a landlord-tenant law seminar conducted for low-income renters. But even where the ultimate purpose of the seminar is to generate business, this fact alone does not automatically make the brochure itself "a written communication to a prospective client for the purpose of obtaining professional employment." As a practical matter, the mere announcement of a seminar is not likely to persuade the recipient to employ the firm's services.
Moreover, requiring a label for all mailed seminar materials is not in keeping with the likely purpose of ER 7.2(e). It is not clear why the labelling requirement, which does not appear in the ABA's Model Rules of Professional Conduct, was adopted in Arizona. It probably had its origin in In re R. M. J., 455 U.S. 191, 102 S. Ct. 929, 71 L. Ed. 2d 64 (1982), where the Supreme Court suggested that labelling could allay concerns that recipients might become alarmed when presented with letters from a law office. See 455 U.S. at 206 n. 20, 102 S. Ct. at 939, n. 20. However, a seminar brochure is unlikely to generate any such alarm. This is particularly true of the inquiring firm's sample brochure, which is clearly marked with the seminar logo and is designed to be mailed without an envelope.
The labelling requirement may also have been inspired by the Court's suggestion in Bates that some sort of warning might prevent the reader from being misled, for example, by claims about the quality of legal services. See 433 U.S. at 383-84, 97 S. Ct. at 2709. However, there is nothing inherently misleading about a seminar brochure. A brochure which simply announces the seminar will only lead the reader to believe that a seminar, taught by qualified instructors, is to be conducted.
Therefore, this committee cannot say that seminar brochures always constitute advertising. On the other hand, the committee is unwilling to decide that seminar announcements can never constitute advertising. For example, a seminar brochure expressly urging the reader to employ the law firm's services is plainly an advertisement. A law firm should not be permitted to circumvent valid advertising requirements simply because its advertisement appears in publicity for a seminar.
As a result, materials must be analyzed on a case-by-case basis to determine whether a particular brochure, apart from the seminar it purports to announce, constitutes an advertisement for purposes of ER 7.2(e).
Some guidance for making this 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 give short, factual statements of the attorney's qualifications, and which do not violate ER 7.1 or ER 7.2(f), need not be labelled as advertisements.
Two examples illustrate the application of these criteria. First, the inquiring firm has provided a sample brochure for the committee's consideration. For the most part, the brochure appears to be appropriate for distribution by mail. While information about the attorneys is lengthier than the descriptions of the seminars, it is not excessively so. Information about the attorneys is generally related to their qualifications as instructors. The firm itself is not promoted, although it is mentioned as the sponsor of the seminars.
Portions of the brochure are troublesome, however. The information about the attorneys is sometimes descriptive rather than factual. Some statements are only loosely indicative of the instructor's qualifications to teach the seminar. One attorney, for example, is described as "a well-known leader in the legal community." This statement arguably goes beyond a “short, factual statement of the lawyer's qualifications." Opinion No. 87-23 at 4. More troubling is a portion of the sample brochure in which an instructor is touted as having won verdicts in 45 out of 50 trials. This statement appears to violate ER 7.1, even if the statistic is accurate.
These sorts of comments seem designed to promote the attorneys, rather than the seminars, and go beyond a “short, factual statement of the lawyer's qualifications." We believe that a brochure containing such comments could be considered an advertisement within the scope of ER 7.2(e), although the seminar would be otherwise properly conducted.
A Massachusetts Bar Association opinion provides another illustration. There, the Association's Committee on Professional Ethics stated that promotional materials for a seminar conducted by the firm need not be labelled as advertisements. The brochure in that case “neither expressly nor implied suggest[ed] that those reading the brochure employ...or consider employing the firm or any lawyers in the firm." Mass. Bar Assn. Comm. on Professional Ethics, Op. 86-3 (1986). This committee agrees that such a brochure need not be labelled as an advertisement, provided the seminar is properly conducted and the brochure does not violate ER 7.1 or ER 7.2(f).
We find no indication that the inquiring firm's seminars will violate any ethical rules. Since the seminars are permissible, they may be publicized. Promotional materials which include short, factual statements of the participating attorneys' qualifications, and which do not violate ER 7.1 or ER 7.2(f), may be mailed to selected non-clients and need not be labelled as advertisements. The inquiring firm should evaluate any promotional materials in light of the criteria described in this opinion.
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 proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.
© State Bar of Arizona 1988