Ethics Opinion

Opinion No. 97-4

April 1997

Summary: A lawyer must refrain from sending business cards or using other means of soliciting professional employment for a fee from people he learns about in the newspaper or through other media when their circumstances are such that there is potential that the targets of the solicitation cannot exercise reasonable judgment in employing a lawyer.

Facts: An attorney asks whether he may mail out his business card, without his letterhead, to prospective clients, and if so, what he must do to comply with DR 2-103 (C). This would not be a broad mailing to the general public or to persons who make inquiries regarding his services; rather, by "prospective clients" he means persons about whom he learns through newspapers or other media.
Discussion: The applicable disciplinary rules are DR 2-103 (B) and (C) which state:
(B) A lawyer shall not solicit professional employment if:
(1) The lawyer knows or reasonably should know that the physical, mental or emotional state of the prospective client is such that there is potential that the person cannot exercise reasonable judgment in employing a lawyer, provided, however, that this prohibition shall not apply to solicitation, not for a fee; or
(2) the prospective client has made known to the lawyer a desire not to be solicited.
(C) A lawyer shall not solicit professional employment for a fee from a prospective client by written communication, audio or video cassette, or other electronic materials directed to such prospective client unless:
(1) each such communication is clearly labeled "advertising" on its face and on any envelope or container, and
(2) the lawyer retains a copy of such communication for two years.
The Supreme Judicial Court's Committee on Lawyer Solicitation, which recommended this Rule to the Court, appended a Comment to its recommendation, which explained the purpose of the Rule:
In determining whether a contact is permissible under DR 2-103 (B) (1), it is relevant to consider the times and circumstances under which the contact is initiated. For example, a person undergoing active medical treatment for traumatic injury is unlikely to be in an emotional state in which reasonable judgment about employing a lawyer can be exercised. The reference to the "physical, mental, or emotional state of the prospective client" is intended to be all-inclusive of the condition of such person and includes a prospective client who for any reason lacks sufficient sophistication to be able to select a lawyer.
The Committee therefore advises that the approach described would be prohibited by DR 2-103 (B) (1) under most conceivable circumstances, if persons the attorney intends to target are the recent victims of accidents, their relatives, or other persons who have suffered some serious loss or injury. At these times people often suffer from emotional stress which might make it difficult for them to exercise reasonable judgment in employing an attorney. It is worth noting the potential that the person(s) targeted cannot exercise reasonable judgment is enough to bring the proposed activity under the ambit of the rule.
The rationale behind this type of prohibition was addressed by the United States Supreme Court when it considered a similar rule in Florida Bar v. Went for It Inc., ___ U.S. ___, 115 S. Ct. 2371 (1995): "... The intrusion targeted by the Bar's regulation stems not from the fact that a lawyer has learned about an accident or disaster (as the Court of Appeals notes, in many instances a lawyer need only read the newspaper to glean this information), but from the lawyer's confrontation of victims or relatives with such information, while wounds are still open, in order to solicit their business." The Court also pointed to the reputational harm done to the legal profession by such targeted solicitations. 115 S. Ct. at 1279.
In situations to which the proscriptions of subsection (B) (1) do not apply, an attorney must comply with DR 2-103 (C) (1) by indicating on the business card, and the envelope in which it is sent, that it is advertising. Sending a business card without letterhead is no different from sending a letter or a flyer soliciting business.

Permission to publish granted by the Board of Delegates on February 6, 1997. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official government status.