Ethics Opinion

Opinion No. 78-3

March 1978

Summary: A lawyer may distribute to clients with whom he has a continuing relationship copies of a commercially prepared newsletter on legal matters and identify himself as the distributor.

Facts: A tax and financial publishing company plans to publish a newsletter to be sold in quantity to attorneys, who in turn would mail the letter to existing clients interested in tax and financial information. The attorney's name, address, and telephone and telex numbers would appear on the newsletter. The committee is asking whether it would be unethical for Massachusetts lawyers to distribute this newsletter to their clients or to non-clients, and whether the publisher faces any sanctions itself.

Discussion: Many newsletters dealing with legal topics are prepared and distributed to non-lawyers. It is also considered good preventive law for lawyers to notify clients of changes in the law that may affect their situations. (See our Opinion 75-1.) The proposed newsletter would, in effect, combine these approaches, thereby simplifying the distribution of information to clients. Ethical Consideration 2-3 of the Code of Professional Responsibility indicates that giving advice that one should take legal action can help fulfill a lawyer's duty to assist laymen in recognizing legal problems.
We believe that a lawyer may properly distribute such a newsletter to his clients with whom he has a continuing relationship. He should, of course, not accept the statements of the newsletter's authors blindly, but should consider their validity before distributing the newsletter, and should advise the recipients of any disagreement that he may have with statements in the newsletter.
Under present Supreme Judicial Court Rule 3:22, the distribution of a newsletter to non-clients would be prohibited as self-promotion under DR 2-101. See ABA Informal Opinion 1365, holding that the widespread dissemination of a brochure on Virgin Islands divorce to individuals who were not clients was unethical. DR 2-104, which prohibits accepting employment from one who receives unsolicited advice, would also apply.
These prohibitions against lawyer advertising are now under reconsideration by the Supreme Judicial Court. The Supreme Judicial Court may amend General Rule 3:22 on advertising in response to the opinions in Bates v. State Bar of Arizona, Jacoby v. Meyers, and other relevant cases.
The question of possible sanctions against the publisher is a question of substantive law. This committee's rules prohibit it from giving an opinion on such a matter of law.

Permission to publish granted by the Board of Delegates, 1978. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.