84-F-78 - Direct Mail Solicitation

FORMAL ETHICS OPINION 84-F-78

(1) May an attorney engage in direct mail communication which is

mailed to every defaulting mortgager whose home is advertised for

foreclosure;

AND

(2) May an attorney engage in direct mail communication to C.P.A.'s

requesting them to recommend his service as a tax advisor to their

clients.

(1) Disciplinary Rule 2-101(M) of the Code provides, in part, as follows:

... direct mail ... may be used, but only if the contents

comply with all requirements that pertain to the print

media, ... and do not engage in solicitation.

In Kentucky Bar Association v. Stuart, 568 S.W. 2d 933 (Ky. 1978), the Kentucky

Supreme Court declined to discipline attorneys for mailing letters to real estate brokers.

The letters stated the prices charged for routine legal services in real estate transactions,

the time in which services would be rendered, and the qualifications of those who would

perform the services. The Court found that the letters did not constitute in-person

solicitation any more than other forms of advertising. The Court reasoned that the fact

that the advertisement was in the form of a letter did not increase the likelihood of

overreaching or deceptive practices, potential dangers in all advertising.

In January, 1982, the United States Supreme Court in In Re: R.M.J., 102 S. Ct. 929

(1982), upheld a lawyer's right to mail professional announcement cards to non-clients,

holding that states may regulate lawyer advertising that is actually or inherently

misleading, but no more extensively than reasonably necessary to further substantial

interests.

Direct mail advertisements involve no appreciable invasion of privacy and may, in fact,

be less threatening or intrusive than aggressive multimedia advertising campaigns. The

public can scrutinize letters carefully, deliberate and make critical comparisons free from

pressures of time and without being overpowered by the personality of a lawyer who

solicits business personally.

There is no impropriety in engaging in direct mail advertising which is mailed to every

defaulting mortgager whose home is advertised for

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foreclosure.

The letter, in this instance, states:

I have experience ... to provide immediate financial relief

for persons such as yourself to stop foreclosure

proceedings.

The above language is misleading and in violation of Disciplinary Rule 2-101(A).

(2) The New York Supreme Court, Appellate Division in the case of In Re: Greene,

54 N.Y. 2d 118, 429 N.E. 2d 390, 444 N.Y.S. 2d 883 (1981), held that an attorney who

mailed one thousand flyers to real estate brokers in which he requested the brokers to

refer individuals to him for legal services in the sale or purchase of real property

constituted direct mail solicitation of clients through third person which was prohibited

and not constitutionally protected.

Direct mail communication to C.P.A.'s requesting them to recommend the attorney's

services as a tax advisor constitutes third party solicitation and is improper.

This 17th day of October , 1984.

ETHICS COMMITTEE:

O. B. Hofstetter, Jr.

Jerry Colley

William R. Willis

APPROVED AND ADOPTED BY THE BOARD