Opinion 98-3
(February 1998)

You have asked this Committee to review a form targeted direct mailing that you propose to send to the parent(s) or legal guardian(s) of minor children who may have been exposed to lead poisons. The recipients of the mailing will be identified from the public records of the City Health Department which indicate residences where the existence of a lead hazard has been determined. You have also asked this Committee to review an addendum to your fee agreement to be executed by the parent or legal guardian of minor children you represent.
 
Several Pennsylvania Rules of Professional Conduct apply to your targeted direct mailing. Rule 7.1 governs the content of advertisements and provides that a lawyer cannot make a false or misleading communication about the lawyer or the lawyer's services. Rule 7.2(b) requires you to keep a copy of an advertisement or written communication for two years after its dissemination, as well as a record of when and where the communication was sent and the name of at least one lawyer responsible for the advertisement's content. Rule 7.3 provides that:
 
(a) A lawyer shall not solicit in-person or by intermediary 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 or by telephone, but, subject to the requirements of Rules 7.1 and Rule 7.3(b), does not include written communications, which may include targeted, direct mail advertisements.
 
(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 employment 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, or harassment.
 
The Committee takes no position with regard to the substantive content of your proposed mailing and it compliance with Rule 7.1 The facts are known to you and it is you who must evaluate the truthfulness of the communication. However, the Committee suggests introducing the mailing with a phrase such as "I am an attorney" to indicate clearly that the sender is a lawyer.
 
The Committee believes that the propose mailing does not involve coercion, duress or harassment. You should also insure compliance with Rules 7.3(b)(1) & (2). Please note however, that one Committee member expressed concern that there is the potential in some circumstances that the content of your letter could cause certain recipients anxiety over the existence of lead in their home to such an extent they could not exercise reasonable judgment in employing a lawyer.
 
With respect to the Addendum to the Fee Agreement, the Committee cannot opine on the language in the last paragraph because it is not clear to the Committee what the language means or what its purpose is. The Committee finds nothing improper with the balance of the Addendum. If you desire guidance on the final paragraph of the Addendum, please provide the Committee with an explanation of its meaning and intent.
     

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.