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 97-05
Attorney A has a highly specialized practice and intends to directly solicit specific companies by mail advising them of the availability of his legal services. Attorney A is not aware that any of these companies have any specific need for legal services. Attorney A further intends to attend seminars put on for companies regulated in the area in which he practices, personally meet attendees, and then send the attendees a letter or brochure describing his legal services.
Questions:
1) May Attorney A directly solicit companies by mail advising them of the availability of his legal services?
2) May Attorney A send letters or brochures describing his legal services to persons attending the seminars?
3) Must the direct mail solicitations sent to the companies and seminar attendees comply with the Rule 7.3(c) of the Rules Professional Conduct?
4) Does Rule 7.3(d) require Attorney A to file a copy of the solicitation letters with the Commission on Lawyer Conduct?
5) Must Attorney A comply with Rule 7.3(d) and maintain a file of the written or recorded solicitations sent to the companies and seminar attendees?
Summary:
1) Attorney A may solicit the companies by direct mail even though they may not be known to be in need of legal services in a particular matter.
2) Attorney A may send letters or brochures to persons attending the seminars.
3) Only those written solicitations sent by Attorney A to prospective clients known to be in need of legal services in a particular matter must comply with Rule 7.3(c).
4) Attorney A must file with the Commission on Lawyer Conduct only those written solicitations sent to prospective clients known to be in need of legal services.
5) Rule 7.3(e) requires Attorney A to maintain a file of all written or recorded solicitations sent to prospective clients.
Opinion:
1) Rule 7.2(a) of the Rules of Professional Conduct generally permits written or recorded communications with prospective clients. However, all communications with prospective clients are, without exception, subject to the limitations set forth in Rules 7.1 and 7.3. See Ethics Adv. Op. 94-26.
Rule 7.1(a) provides that every communication made by an attorney regarding the attorney or the attorney's services shall not be false or misleading. See State v. Robinson, 468 S. E. 2d 290 (S.C. 1996) (First Amendment does not protect commercial speech that is false, deceptive, or misleading). We have advised that the contents of a direct mail solicitation must conform with the Rule 7.1. See Ethics Adv. Op. 92-40. As to how this relates to claims for specialization, see Rule 7.4.
Rule 7.3 (b) expressly provides that written solicitations are prohibited from being sent to prospective clients when the prospective client has advised the attorney that he does not want to be solicited or the solicitation involves coercion, duress, and harassment. We have advised that every written solicitation for professional employment, including those sent to prospective clients, must comply with Rule 7.3(b). See Ethics Adv. Op. 95-31; 94-26.
Rule 7.3(c) requires that every written solicitation from an attorney to a prospective client known to be in need of legal services in a particular matter and with whom the attorney has no family or prior professional relationship must contain certain notices and disclaimers. We have advised that Rule 7.3 clearly distinguishes between communications made to people known to be in need of legal services and other communications. See Ethics Adv. Op. 95-31. If a solicitation is mailed to a number of recipients, the lawyer must include the specific notices of Rule 7.3(c) only in mailings sent to prospective clients known to need services in a particular matter.
2) We have advised that a law firm could ethically send firm brochures to persons attending seminars conducted by members of the same law firm. See Ethics Adv. Op. 90-37. Rule 7.3 is intended to prohibit solicitations which are likely to overwhelm or unduly influence the prospective client. We have advised that the fact that an attorney may have spoken previously to a person later solicited by mail does not present any significant additional risk of overreaching. See Ethics Adv. Op. 90-37. The facts described herein do not present any such risk.
3) Rule 7.3 (c) applies only to solicitation of prospective clients "known to be in need of legal services in a particular matter." Therefore, to the extent that Attorney A's direct mail solicitations are distributed to companies not yet know by him to be in need of legal services, the notices and disclaimers set forth in Rule 7(c)(1) to (3) would not be required. However, those written solicitations mailed to companies known to be in need of legal services and to which Attorney A had no prior family or professional relationship would have to include the notices and disclaimers. See Ethics Adv. Op. 94-26.
4) We have advised that the filing requirement contained in Rule 7.3(d) applies only to communications covered under Rule 7.3(c). See Ethics Adv. Op. 95-31. Therefore, as Rule 7.3(c) pertains merely to written or recorded solicitations sent to prospective clients known to be in need of legal services, Attorney would not have to file with the Commission on Lawyer Conduct copies of the written solicitations delivered to prospective clients who are not known to be in need of legal services.
5) Unlike Rule 7.3(d), no limiting language is contained in rule 7.3(e). Rule 7.3(e) provides that "Any lawyer who uses written or recorded solicitations shall maintain a file. . ." Granted, Rule 7.3(e)(1) requires the attorney to set forth the basis for his knowledge that the person solicited needs legal services. However, we believe this provision is limited to those situations when written or recorded solicitations are sent to prospective clients known to be in need of legal services. Rule 7.3(e)(2) clearly applies to all written or recorded solicitations. For purposes of complying with Rule 7.3(e), an attorney should maintain two (2) files. One should contain all written or recorded solicitations sent to prospective clients known to be in need of legal services. The other should contain all other written or recorded solicitations.