Opinion 88-27
(September 1988)

By letter dated August 5, 1988, you requested an opinion from this Committee on the propriety of a form of direct mail solicitation of a prospective client.

In 1985, the Committee on Legal Ethics and Professional Responsibility of the Pennsylvania Bar Association issued a global opinion on lawyer advertising and solicitation (Formal Opinion #85-170). That opinion concluded:

Targeted direct mail advertisements, including advertisements containing information about specific legal problems, are permissible, subject to the limitations on accuracy and objectivity applicable to all lawyer advertising.

The opinion relied in part on a decision by Judge Lord of the United States District Court, Spencer v. The Honorable Justices of the Supreme Court of Pennsylvania, 579 F. Supp. 880 (E.D.Pa. 1984). The PBA opinion discussed Judge Lord's opinion as follows:

Judge Lord next considered the propriety of direct mailings. He recognized that the State has an interest in protecting its constituents from overreaching and undue influence; however, these interests are not necessarily advanced by prohibiting all direct mailing. Judge Lord commented that the evils inherent in in-person solicitation, the lack of an opportunity for comparison, reflection, counter-education, pressure and intimidation are not present in the direct mail context. Although the target of in-person solicitation is a captive audience and cannot escape objectionable or offensive speech, recipients of direct mail can avoid any affront to their sensitivities by simply throwing letters in the trash can.... Thus, Judge Lord concluded that protection of the public against an invasion of privacy was not a sufficient enough state interest to justify a prophylactic rule banning all direct mail solicitation.

Judge Lord further concluded that to prohibit a lawyer from selecting as the recipient of his or her communication those who may be most in need of a lawyer's services totally ignores the reason commercial speech is constitutionally protected -- to inform the public of the availability, nature and prices of products and services and thus perform an indispensable role in the allocation of resources in a free enterprise system.

Subsequently, on April 1, 1988, the Rules of Professional Conduct became effective in Pennsylvania. Rules 7.1 to 7.4 are entitled "Information About Legal Services." Rule 7.1 prohibits false or misleading communications about a lawyer or a lawyer's services. Rule 7.3 covers direct contact with prospective clients. That rule states:

... (b) A lawyer shall not contact, 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 that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer;

(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, harassment.

This section differs from the Model Rule 7.3.

On June 13, 1988, the United States Supreme Court decided Shapero v. Kentucky Bar Association, ___ U.S. ___, 100 L.Ed. 2d 475, 108 S.Ct. 1916 (1988). The question presented was whether a state may, consistent with the First and Fourteenth Amendments, categorically prohibit lawyers from soliciting legal business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems. The Court answered "no." In doing so, the Court explained:

[M]erely because targeted, direct mail solicitation presents lawyers with opportunities for isolated abuses or mistakes does not justify a total ban on that mode of protected commercial speech. See In re R.M.J., 455 U.S. at 203, 71 L. Ed. 2d 64, 102 S.Ct. 929. The State can regulate such abuses and minimize mistakes through far less restrictive and more precise means, the most obvious of which is to require the lawyer to file any solicitation letter with a state agency, id., at 206, 71 L. Ed. 2d 64, 102 S.Ct. 929, giving the State ample opportunity to supervise mailing and penalize actual abuses.

100 L.Ed. at 486.

Turning to the letter in issue, assuming its truth, (e.g., that the consultation is absolutely free and that there is no charge unless there is a recovery 1 the letter is not ethically prohibited.

Notes

1. See Rule 1.8(e)(1) which eliminates the previous requirement that the client remain ultimately liable for court costs and expenses of litigation.
   

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.