Opinion 470

Statement of Facts Discussion Conclusion

A Texas lawyer receives information about an individual injured in a motor vehicle collision. The woman who was injured was transported to the hospital and was treated for her injuries. It is clear, from the information received by the attorney, that the other driver involved in the collision was at fault and it is apparent that the injured individual has a viable cause of action against the other driver for her resulting injuries.

The lawyer reads about the injured individual's collision in a local newspaper. The lawyer does not know and has no reasonable basis to think that the prospective client, the injured individual, could not exercise reasonable judgment in employing a lawyer. The lawyer proposes to send the injured party a letter that does not contain any statements that would constitute coercion, duress, or harassment. The prospective client, the injured individual, does not appear to be a minor, a person incapacitated or a person unable to exercise reasonable judgment. The lawyer sends a letter to the injured party's home address that contains the following information: 1. The lawyer's background, degrees and positions held, and areas of practice; 2. A State Bar of Texas disclaimer that the lawyer is not board certified in personal injury law; 3. A statement that the injured individual may be entitled to damages, based on the facts of the case as the lawyer understands them; 4. A general statement of the law of negligence as it relates to this particular incident; 5. A general explanation as to the types of damages that victims of personal injuries in Texas may recover (e.g. loss of consortium, pain and suffering, loss of earning capacity, disfigurement, medical expenses, etc.) and a general explanation of exemplary/punitive damages; 6. A general statement that if the other driver was uninsured or underinsured and the injured party had certain insurance coverage (uninsured or underinsured coverage) it is possible that the party might be entitled to make a claim against her own insurance carrier for her damages; 7. The lawyer encloses a brochure which contains information regarding the lawyer's background, employment experience, membership in associations and professional organizations and a State Bar of Texas disclaimer.

For the sake of this discussion, it is assumed that the lawyer's letter does not contain any statements that are false and misleading, as defined by Rule 7.01(a) of the Texas Disciplinary Rules of Professional Conduct.

The United States Supreme Court decision in Shapero v. Kentucky Bar Association, 486 U.S. 466, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988) brings targeted direct mail solicitation by lawyers within the area of constitutionally protected commercial speech. Consistent with this decision the Texas Disciplinary Rules of Professional Conduct effective January 1, 1990, do not prohibit the sending of truthful and non-deceptive letters to potential clients known to face particular legal problems. Although extending First and Fourteenth Amendment protection to this type of lawyer solicitation, the Supreme Court admits that "a letter that is personalized (not merely targeted) to the recipient presents an increased risk of deception, intentional or inadvertent." 486 U.S. at 476. While the State may not ban such communications, it does retain the authority to regulate them in furtherance of its substantial interest in preventing deception of the public. Rule 7.01 of the Texas Disciplinary Rules of Professional Conduct contains those requirements which are intended to prevent false or misleading communications about the lawyer or the lawyer's services. It provides in part that: (a) A lawyer shall not make a false or misleading communication about the qualifications or the services of any lawyer or law firm. A statement is false or misleading if it: (1) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. . . .

The practice of reciting particular facts, applying the law to those facts and drawing legal conclusions prior to any direct contact with the potential client presents an increased opportunity for mistakes and abuses. To guard against confusion that might arise at a later date over the exact content of such a written communication and to determine whether or not such a mistake or abuse has occurred, Rule 7.01(h) requires that the lawyer retain a copy of such a communication for four years. Consistent with the State's retained authority to restrict "[f]alse, deceptive, or misleading advertising" In re R.M.J., 455 U.S. 191, 200, 102 S.Ct. 929, 936, 71 L.Ed.2d 64 (1982), the lawyer could be required to prove the truth of the facts stated therein or explain how the fact was discovered and verified. 486 U.S. at 477.

It should be noted that paragraph (f) of Rule 7.01 extends the requirements of paragraph (c) and (d) to all written communications to a prospective client for the purpose of obtaining professional employment. This means that all such letters shall include the name of the lawyer who will be responsible for the performance of the legal service and the required State Bar of Texas disclaimers with regard to Board Certification. These statements must be displayed conspicuously.

A printed brochure or non-personalized form letter which complies with Rule 7.01 would continue to be an acceptable means of advertisement (see Ethics Opinions No. 414, February 1984 and April 1984; and 420, December 1984). As long as the communication is in compliance with the requirements of Rule 7.01, it may include the lawyer's background, schooling, degrees and positions held, providing that such background information does not imply that the lawyer is able to influence improperly or upon irrelevant grounds any tribunal, legislative body or public official (see Ethics Opinion 418, October 1984). The lawyer may also list the particular areas of concentration within his practice provided, again, that the requirements of 7.01(b) and (c) are met, and provided all such background information is truthful and not likely to mislead or deceive.

It is permissible under the Texas Disciplinary Rules of Professional Conduct for a lawyer to mail a letter or firm brochure to a potential client known to be in need of particular legal services. Whether a lawyer mails a letter or a brochure, both must comply with all the requirements of Rule 7.01 regarding communications concerning a lawyer's services. If the lawyer mails a solicitation letter to a potential client which includes facts of an incident, the lawyer may be required to prove the source and accuracy of such facts. Background information about the lawyer such as past employment, membership in non-legal professional associations and job history may be included if it is truthful and not likely to mislead or deceive a potential client.