RI-169

August 18, 1993

SYLLABUS

A lawyer may draft a letter to be included in a packet of information distributed to "newcomers" in a geographical area in which the lawyer describes legal services which are rendered by the lawyer's firm.

References: MRPC 7.1, 7.2(a), 7.3(a); Bates v. State Bar of Arizona, 433 US 350 (1977); Shapero v. Kentucky Bar Ass'n, 486 US 466 (1988). CI-446, CI-896, and C-221 are superseded.

TEXT

A lawyer proposes to direct mail a letter personally addressed to "newcomers" in a particular geographic area, in which the lawyer suggests several legal services which may be needed by persons moving into a new home. The letter states in part:

"Moving into a new home is an ideal time to reassess your legal situation and to make sure your legal affairs are well organized. Changing your residence may require modifications in your will (i.e., a personal representative, one who resides closer to [the local area], should be nominated to avoid undue hardship on the current personal representative), or modifications in your patient advocate designation (i.e., a patient advocate who resides in the [local area] should be nominated to inform local medical personnel of your wishes regarding treatment should you become incapacitated, and copies of the patient advocate form should be filed with your local physician.) Not to mention, you may need legal advise [sic] in the future and not know where to turn for professional, affordable, legal counsel."

The letter sets forth the general services which the lawyer offers, states the lawyer's qualifications by mentioning the lawyer's commitment and personal attributes, promises a prompt response to any questions and invites the prospective client who is interested to "call to setup an appointment." The letter also encloses a brochure which was not submitted for review.

Advertising by lawyers is generally permitted under MRPC 7.1 and is expressly permitted under MRPC 7.2(a). MRPC 7.1 states:

"A lawyer may, on the lawyer's own behalf, on behalf of a partner or associate, or on behalf of any other lawyer affiliated with the lawyer or the lawyer's law firm, use or participate in the use of any form of public communication that is not false, fraudulent, misleading, or deceptive. A communication shall not:

"(a) contain a material misrepresentation of fact or law, or omit a fact necessary to make the statement considered as a whole not materially misleading;

"(b) be likely to create an unjustified expectation about results the lawyer can achieve, or state or imply that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or

"(c) compare the lawyers' services with other lawyers' services, unless the comparison can be factually substantiated."

Direct contact between a lawyer and a prospective client is further governed by MRPC 7.3(a) which states:

"(a) A lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant 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 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, nor does the term 'solicit' include 'sending truthful and nondeceptive letters to potential clients known to face particular legal problems' as elucidated in Shapero v. Kentucky Bar Ass'n, 486 US 466; 108 S Ct 1916; 100 L Ed 2d 475 (1988)."

In Shapero, the court considered a letter from a lawyer personally addressed to potential clients against whom foreclosure suits had been filed, in which the lawyer generally informed the recipients of rights they may have and invited the recipients to call the lawyer for free advice. A majority of the Court determined that the contents of the letter were constitutionally protected commercial speech as defined in Bates v. State Bar of Arizona, 433 US 350; 97 S Ct 2691; 53 L Ed 2d 810 (1977). The Court further concluded that "the state may not constitutionally ban a particular letter on the theory that to mail it only to those whom it would most interest is somehow inherently objectionable." 486 US at 473-74.

Thus, under Shapero, personalized letters targeted to potential clients with an identified need for particular legal services which invite the recipient to respond to the lawyer, such as the letter under consideration here, fall within the scope of constitutionally protected commercial speech.

The contents of the letter must conform to MRPC 7.1. In this inquiry, the letter under consideration suggests two legal matters which the recipient should consider when changing residences and as such does provide valuable information which is useful to potential clients. However, the letter also states that the recipient "should" modify his or her will to nominate a personal representative who resides closer to the recipient's new home and "should" modify the recipient's patient advocate form to also nominate a patient advocate who resides in the local area. The use of the term "should" in these instances is potentially misleading insofar as the recipient may be left with the impression that his or her will or patient advocate form are rendered unenforceable or otherwise invalid by a failure to make the suggested changes. The suggested changes are not legally required in either case. While the suggestions of the lawyer may be sound practical advice, the recipient of the letter may mistake the practical nature of the advice for a statement of the legal requirements for valid wills and patient advocate forms and thus be mislead into believing that the lawyer's services are needed. For these reasons the letter should be redrafted.

The Committee is not empowered to perform investigation or other fact-finding, but considers the facts as provided. Nothing in this opinion should be construed as indicating that the Committee has determined the qualifications of the lawyer or the truthfulness of the statements in the proposed letter. We simply note that the contents must conform to MRPC 7.1 in order to be ethical.

Ethics opinions CI-446, CI-896, and C-221, all of which predate Shapero, are superseded.