UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 94-26
Lawyer L, who is a certified specialist, wishes to mail a brochure to various local residents, describing L's practice and the legal services offered. The brochure would be limited to a general discussion of L's educational background and qualifications, including specifically L's certification, as well as a description of the types of cases accepted, and L's fee schedule.
Question:
If a written communication to someone with whom the lawyer has no prior family or professional relationship includes only certain types of information specifically permitted under Rule 7.2 and its comments, must Lawyer L still comply with Rule 7.3(b) and include the language required by Rule 7.3(c)(2) or does Rule 7.2 then stand independent of Rule 7.3?
Summary:
Rule 7.3 applies to all advertising and solicitations of professional employment. Lawyer L must, therefore, comply with the limitations of Rule 7.3(b). Rule 7.3(c), however, requires certain notices only if the communication is made to persons known to be in need of legal services and if the lawyer has no prior family or professional relationship with the recipient.
Opinion:
Rule 7.2 generally permits media advertising as well as written or recorded communications with prospective clients. Every communication allowed under Rule 7.2, however, is expressly subject to the limitations and regulations of Rules 7.1 and 7.3. No exception exists. Therefore, every such communication must avoid false or misleading statements that would violate Rule 7.1 and must comply with the disclosure requirements of Rule 7.3. The Comment to Rule 7.2 merely describes certain categories of information that may be disseminated under Rule 7.2 and does not create an exception to Rule 7.3.
The inquiry specifically asks about the application of Rule 7.3(b) and (c) to the communication proposed. Every written solicitation of professional employment made to a prospective client must comply with Rule 7.3(b)(1), which prohibits any solicitation of a prospective client who "has made known to the lawyer a desire not to be solicited." Also, no solicitation may involve "coercion, duress or harassment" in violation of Rule 7.3(b)(2). Rule 7.3(c) applies only to solicitation of "a prospective client known to be in need of legal services in a particular matter." Therefore, if the brochures were distributed to persons not yet known by the lawyer to be in need of legal services, the notices set forth in Rule 7.3(c) would not be required. If the brochures were mailed to persons known to be in need of legal services and if the lawyer had no prior family or professional relationship with the recipient, then the notices would be required, even with the limited editorial content described in the inquiry.