Opinion 413

Statement of Facts Discussion Conclusion

This inquiry requires examination of recent developments in the area of attorney advertising and solicitation. For the reasons discussed below, the Committee is of the opinion that the selling of will forms in the manner described above is not a protected form of advertising but instead is a form of solicitation that is proscribed by the Code of Professional Responsibility.

Disciplinary Rule 2-103 prohibits a lawyer from recommending his employment to non-lawyers who have not sought his advice, except advertising in the public media within the limits of DR 2-101, or in person so long as there is no intimidation or overreaching, or to close friends, relatives and former clients, or if acting on behalf of a bona fide, nonprofit organization. DR 2- 103(D) bars written or other communications to prospective clients for the purpose of obtaining employment if the lawyer knows or should know the person is unable to exercise reasonable judgment in employing a lawyer or has expressed a desire not to receive communications from the lawyer, or if the communication involves coercion or duress or contains any false or misleading information as defined in DR 2-101.

Prior to the 1977 decision of the Supreme Court in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the disciplinary rules prohibited any form of lawyer advertising. In Bates, the Supreme Court held that lawyer publicity is, within limits, constitutionally protected by the First Amendment guarantee of freedom of speech. However, the Bates decision left open the possibility of regulation as to the content of lawyer advertising, citing the permissibility of regulation on commercial speech to protect a state's compelling interest. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976). In Matter of R__M.J __, 455 U.S. 191 (1982), the Supreme Court struck down an absolute prohibition on the mailing of announcement cards to members of the public.

In Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978), the Supreme Court upheld the suspension of an attorney for soliciting the business of an accident victim in her hospital room. The Court was particularly leery of the coercive nature of in-person solicitation. The fact situation here is different, in that the attorney does not personally solicit the business of the letter recipients. However, the possibility that the letter was directed specifically towards nursing home residents could be considered as having this effect.

The Supreme Court considered a form of direct-mail solicitation in In re Primus, 436 U.S. 412 (1978). The Court held that disciplinary action in the Primus case would have violated the First Amendment. However, the situation in Primus dealt with freedom of association and freedom of political expression in the absence of intent to gain pecuniary advantage. The attorney's desire to sell will forms establishes an intent to secure a financial benefit.

The Ethical Considerations of the Code of Professional Responsibility provide some guidelines for scrutiny of attorney conduct. Ethical Considerations 2-2, 2-3, and 2-4 deal with advice to a layman to seek the assistance of counsel and legal education of the lay public in general. The recurrent theme in these Ethical Considerations is that the lawyer should be motivated by a desire to further legal assistance and protection for lay persons, but not by a desire to obtain personal benefit or secure professional employment.

The attorney's letter is acceptable to the extent that it recommends intestate people to remedy their intestacy but not to the extent that it offers will forms for sale. In spite of the disclaimer of establishment of any attorney- client relationship, the sale of will forms has been held by the Court of Civil Appeals of Texas (14th District) to constitute the practice of law. Palmer v. Unauthorized Practice Comm. of State Bar, 438 S.W.2d 374 (Tex.Civ.App.-- Houston 1969, no writ). In addition, the attorney's provision of the will forms and of instructions on filling them out would constitute the giving of legal advice, and therefore an attorney-client relationship would naturally arise upon the recipient's acceptance of the attorney's offer. In view of the establishment of the attorney-client relationship, the disclaimer would violate DR 6-102 which prohibits any attempt by an attorney to exonerate himself in advance from liability to his clients for his malpractice.

Texas courts have not considered the permissibility of direct-mail solicitation. In Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530 (1980), the United States Supreme Court considered whether bill inserts on public policy issues could be banned outright and held they could not since the recipient "may escape exposure to objectionable material simply by transferring the bill insert from envelope to wastebasket." Id. at 542. However, although direct-mail solicitation may not be absolutely prohibited, the content of the communication may be regulated. Koffler v. Joint Bar Ass'n, 51 N.Y.2d 140, 412 N.E.2d 927 (1980); Kentucky Bar Ass'n v. Stuart, 568 S.W.2d 933 (Ky. 1978). The Supreme Court of Louisiana has held that attorneys' mail solicitation could be regulated where the motive was financial gain. Allison v. Louisiana Bar Ass'n, 362 So.2d 489 (La. 1978). A recent Colorado Supreme Court decision held that publicly-communicated advertising for sale of legal forms was unethical. People v. Roehl, 655 P.2d 1381 (Colo. 1983) (in which the court stated, "The practice of law, in short, is not a business involving the marketing of legal stationery").

The proposed mailing is not one of the forms of solicitation allowed by DR 2- 103(A) and it violates DR 2-103(D) in two ways. First, it likely will reach persons who are unable to exercise reasonable judgment in employing an attorney. Second, the disclaimer that no attorney-client relationship is sought is false and misleading in violation of DR's 2-103(D) and 2-101(A)(1) and (8). Persons purchasing the will forms and instructions are likely to believe that their estates will be fully taken care of when in reality they may need a much more comprehensive instrument or different, additional legal assistance. Furthermore, a recipient's acceptance of the attorney's offer to sell the will forms and reliance upon the attorney's instructions would establish an attorney-client relationship, notwithstanding the disclaimer in the attorney's letter; the disclaimer therefore violates DR 6-102.