Opinion 414

Statement of Facts Discussion Conclusion

An advertisement or form letter that is not personally addressed to the individual recipient is an advertising communication subject to Disciplinary Rule ("DR") 2-101. Ethical Consideration ("EC") 2-10 (as amended in 1982) defines "advertising media" to include "printed media" and defines "printed media" to include "mail." An advertisement for legal services sent through the mail must, like any other advertisement for legal services, comply with the requirements of DR 2-101, which are intended to prevent false or misleading public communications about the lawyer or the lawyer's services.

A lawyer's direct-mail campaign to obtain employment as a lawyer that involves letters that are personalized for each particular recipient is not, in the view of the Professional Ethics Committee, an advertisement. Instead such mailing is a solicitation communication. Although the free speech guarantees of the First and Fourteenth Amendments to the United States Constitution sharply limit the degree to which attorneys' advertising may be restricted or prohibited by state authorities, see Bates v. State Bar of Arizona, 433 U.S. 350 (1977) and In The Matter of R__ M. J __, 455 U.S. 191 (1982), the Supreme Court of the United States has recognized that the public interest permits substantial limitations and prohibitions with respect to in-person solicitation. See Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978). A direct mailing that is in the form of letters from a lawyer individually addressed to each specific recipient is, in the view of the Committee, sufficiently like oral in-person solicitation to have a similar status for purposes of applying the free speech guarantees of the United States Constitution. Accordingly, such written communications would properly be subject to the requirements of DR 2-103(D), which provides as follows: "(D) A lawyer shall not initiate contact with, or send a written communication to, a prospective client for the purpose of obtaining professional employment if: (1) The lawyer knows or reasonably should know the person could not exercise reasonable judgment in employing a lawyer; or (2) The person has made known to the lawyer a desire not to receive communications from the lawyer; or (3) The communication involves coercion, duress, or harassment; or (4) The communication contains any information prohibited by DR 2-101."

Thus, an attorney seeking to use personalized direct mail to obtain professional employment must comply with the restrictions on advertising communications as set forth in DR 2-101 and in addition must take reasonable steps to ensure that the communication does not go to a person that the lawyer knows or should know could not exercise reasonable judgment in employing a lawyer, that the mailing does not go to a person who has made known a desire not to receive the communication, and that the communication does not involve coercion, duress or harassment.

With respect to the requirement imposed by DR 2-103(D)(1), the Committee believes that a lawyer would in most circumstances violate this requirement by carrying out a personalized direct-mail campaign because the lawyer normally should know that some of the recipients would be persons not capable of exercising reasonable judgment in employing a lawyer, even though the lawyer could not reasonably know which of the recipients would be in that category. This problem would be particularly likely to exist if the category of recipients of the personalized mailing were persons recently involved in an accident, persons of advanced years, or persons with some particular disability. Accordingly, unless the lawyer could reasonably ensure that no recipient of the proposed personalized direct-mail communication would be a person that could not exercise reasonable judgment in employing a lawyer, a lawyer could not under the Texas Code of Professional Responsibility ethically use a personalized direct-mail campaign. Particularly in view of the decision of the United States Supreme Court in Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978), the Committee believes that such a limitation on personalized direct-mail solicitation is not inconsistent with the free speech guarantees of the United States Constitution as presently interpreted by the United States Supreme Court.

A mass mailing by a lawyer of advertisements or nonpersonalized letters constitutes a form of advertising by means of the public media and is permissible subject to the restrictions set forth in DR 2-101 that are generally applicable to advertising by lawyers. A direct-mail campaign by a lawyer involving personalized letters to non-clients is subject to the restrictions of the Texas Code of Professional Responsibility on solicitation rather than simply to the restrictions on advertising. Accordingly, solicitation by means of direct mail of personalized letters is permitted under the Texas Code of Professional Responsibility and constitutional guarantees as presently interpreted by the United States Supreme Court only if (1) the lawyer takes all necessary steps to prevent the personalized direct-mail solicitation from going to any person that could not exercise reasonable judgment in employing a lawyer, (2) the lawyer takes all necessary steps to prevent mailings to persons who have made known a desire not to receive such mailings, (3) the letter does not involve coercion, duress or harassment, and (4) the limitations also applicable to advertising are complied with. (7-0.)