State Bar of Arizona Ethics Opinions

90-07: Communications Concerning Services; Advertising
8/1990

Law firm brochure mailed to select group of non-client businesses; publicizing the availability of firm members to speak before such groups; using the services of Welcome Wagonto distribute firm's brochures.



 

FACTS

 

The inquiring law firm has developed a firm brochure which it wishes to distribute to a selected group of newly established businesses. These businesses "may" need the type of service the law firm offers. With the brochure, the law firm intends to include in a newsletter format general advisory material relating to the recipient company's business. The newsletter states: "For further analysis of how these statutes may affect you, or to receive copies of the statutes, please call...." Also, with the brochure and newsletter, the law firm intends to send a local government telephone directory. A form cover letter will invite the recipient company to consider the law firm for legal services.

 

The law firm also wishes to publicize the availability of firm members to speak to trade and professional associations and social service agencies. The firm intends to contact such organizations by direct mail, advising the associations and agencies of this service and including biographies of participating attorneys.

 

The law firm also wishes to distribute its firm brochure to new residents in the community through Welcome Wagon, Inc. The firm would be charged a fee for each household to which the brochure is delivered.

 

QUESTIONS

 

1. May a law firm ethically mail its firm brochure and related materials to a selected group of non-client businesses?

 

2. May a law firm ethically publicize by direct mail to trade and professional associations and social service agencies the availability of its attorneys to speak before a group without charge?

 

3. May a law firm ethically use the services of Welcome Wagon, Inc., to distribute its firm brochure to non-clients?

 

ETHICAL RULES CITED

 

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 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.

 

*****

 

(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 under ER 7.1.

 

(4) The communication is otherwise improper under ER 7.1

 

*****

 

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 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.

 

(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 this requirement by forwarding a single copy together with a list of the names and addresses of persons to whom the written communication was sent.

 

RELEVANT PRIOR ARIZONA OPINIONS

 

Opinion No. 90-05 (June 26, 1990)

Opinion No. 90-08 (August 2, 1990)

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

Opinion No. 88-07 (September 13, 1988)

Opinion No. 87-23 (October 26, 1987)

 

OPINION

 

    1. The law firm may mail its cover letter, brochure and accompanying materials to the selected group of non-client businesses, provided that the communications are made in accordance with ER 7.1 and 7.2.

 

The inquiring law firm represents that the cover letter, brochure, newsletter and directory (“the package”) will be mailed to non-clients who are not known to need legal services in any particular matter. Hence, ER 7.3 is not applicable. If the package were sent to someone known to need legal services of the kind provided by the lawyer in a particular matter, the law firm would have to comply with ER 7.3.

 

The law firm may mail the package to the selected non-client businesses provided the materials are not false or misleading, ER 7.1, and provided that the firm complies with ER 7.2.

 

Here, the package is predominantly informational. The brochure conveys apparently accurate information relevant to making informed rational choices of counsel. The newsletter contains information about new laws which may affect the recipients. None of the materials contain emotional or irrational sales pitches. They do not appear to contain misrepresentations. They are probably not likely to create unjustified expectations about the results the law firm can achieve. They are not coercive, intimidating nor constitute overreaching. In short, they do not appear to be false or misleading under the criteria discussed in Matter of Zang, 154 Ariz. 134, 741 P.2d 267 (1987), or our Opinion No. 89-09 (November 6, 1989), and thus may be mailed to the selected non-client businesses.

 

However, the law firm must comply with ER 7.2. A copy of the package must be kept for three years after its last dissemination with a record of when and to whom the package was mailed. ER 7.2(b) and 7.2(e) (2). And the package, which would be mailed for the purpose of obtaining professional employment, must be plainly marked "Advertisement" in accordance with ER 7.2(e)(1).

 

An exception would exist if the package were sent directly to in-house counsel for the selected non-client business who was specifically identified by name on the cover letter describing the materials and on the envelope used to send the materials. See our Opinion No. 90-08 (August 2, 1990).

 

In our Opinion No. 90-05 (June 26, 1990), we concluded that a law firm could ethically prepare and distribute to non-clients a Law Review that did not include the “Advertisement" label required by ER 7.2(e) (1). There, the Law Review was deemed analogous to seminar brochures which do not require the "Advertisement" label. See our Opinion No. 88-07 (September 13, 1988). And there, according to the inquiring law firm, the Law Review was prepared and distributed as a service to the construction industry and not for the purpose of obtaining professional employment.

 

Here, the proposed newsletter is similar to the Law Review. If distributed by itself and not with the other promotional materials, and if sent as a service and not for the purpose of obtaining professional employment, the "Advertisement" label would not be required. But that is not the case here.

 

2.         The law firm may publicize by direct mail to trade and professional associations and social service agencies the availability of its attorneys to speak before a group without charge, and the communications need not comply with ER 7.2(e).

 

In our Opinion No. 88-07 (September 13, 1988), we concluded that: (1) a law firm may properly conduct legal seminars which conform to guidelines promulgated by this Committee in its Opinion No. 87-23 (October 26, 1987), even though the firm's motive is financial rather than educational; (2) that the firm may publicize such seminars in an appropriate manner, including mailing promotional brochures to selected non-clients; and (3) that such brochures mailed to non-clients which give short factual statements of the participating attorneys' qualifications, and which do not violate ER 7.1 or ER 7.2(f), need not be labeled “Advertisement” under ER 7.2(e).

 

The situation here is similar to that involved in our Opinion No. 88-07. The Committee concludes that the law firm may publicize by direct mail to trade and professional associations and social service agencies the availability of its attorneys to speak before a group without charge, and the communication need not comply with ER 7.2(e). The communication may contain short factual statements of the areas of law on which the various attorneys will speak and the qualifications of those attorneys to speak on those topics. The speaking engagement or seminar must conform to the guidelines set forth in our Opinion No. 87-23.

 

3.         The law firm may use the services of Welcome Wagon, Inc., to distribute its firm brochure to new residents who are non-clients provided the brochures are labeled "Advertisement" in accordance with ER 7.2(e) (1).

 

The analysis relative to the first issue applies here. The brochures would be distributed by Welcome Wagon, Inc., for the purpose of obtaining professional employment. Thus, the brochures must be plainly marked "Advertisement" in accordance in ER 7.2(e) (1). The law firm must also keep or be able to obtain from Welcome Wagon, Inc., a list of the names and addresses of persons to whom the brochures were distributed. ER 7.2(e) (2).

 

The labeling requirement is particularly appropriate in this instance as labeling the brochure "Advertisement" would tend to ameliorate any misimpression one might get that Welcome Wagon, Inc., was endorsing or recommending the law firm.

  

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. 

©State Bar of Arizona 1990



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