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OPINION NO. 91-06
March 5, 1991
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FACTS:
u“:
Through direct mail, the inquiring attorney intends to send
to the public’the following items: (1) a brochure describing his
law firm; -(2)a checklist generally describing what a person
should do in case he or she is involved in an automobile accident; and (3) a vinyl wallet embossed with the law firm’s name.
The wallet is intended to hold the checklist and is to be placed
in the glove compartment of the recipient’s automobile.
The inquiring attorney advises that the direct mail advertisements will be plainly marked “Advertisement” on the face of
the envelope and at the top of each page of the written communication, as required by ER 7.2(e)(l). The inquiring attorney is
concerned primarily with the question as to whether his providing
the checklist and wallet as parts of his advertising mailing constitutes “giv[ing] anything of value to a person for recommending
the lawyer’s services . . .,” prohibited to Arizona attorneys by
ER 7.2(c).
QUESTION:
Does the proposed advertising plan described comply with
the Arizona Rules of Professional Conduct?
ETHICAL RULES INVOLVED:
ER 7.1.
Communications Concerning a Lawyer’s Services
A lawyer shall not make a false or misleading communication
about the lawyer or the lawyer’s services. A communication is
false or misleading if it:
{a) contains a material misrepresentation of fact or
law, or omits a fact necessary to make the statement considered
as a whole not materially misleading;
(b) is likely to create an unjustified expectation
about results the lawyer can achieve, or states or implies that
the lawyer can achieve results by means that violate the rules of
professional conduct or other law; or
(c) compares the lawyer’s services with other lawyers’
services, unless the comparison can be factually substantiated.
ER 7.2.
Advertising (as amended August 1, 1989)
(a) Subject to the requirements of ER 7.1 and ER 7.3,
a lawyer may advertise services through public medial such as a
telephone directory, legal directory, newspaper or other periodical, outdoor, radio or television, or through written communication.
(b) A copy or recording of an advertisement or written
communication shall be kept for three years after its last dissemination along with a record of when and where it was used.
(c) A lawyer shall not give anything of value to a
person for recommending the lawyer’s services, except that a lawyer may pay the reasonable cost of advertising or written communication permitted by this rule and may pay the usual charges of
a not-for-profit lawyer referral service or other legal service
organization.
(d) Any communication made pursuant to this rule shall
include the name of at least one lawyer responsible for its content.
(e) Written communications to prospective clients for
the purpose of obtaining professional employment are subject to
the following requirements:
(1) Such written communications shall be plainly
marked “Advertisement” on the face of the envelope and
at the top of each page of the written communication in
type no smaller than the largest type used in the written communication; and
(2) A copy of each such written communication
shall be retained by the lawyer for three years. If
written communications identical in content are sent to
two or more prospective clients, the lawyer may comply
with this requirement by retaining a single copy together with a list of the names and addresses of per‘sons to whom the written communication was sent.
ER 7.3.
Direct Contact With Prospective Clients (as
amended August 1, 1989)
*****
(b) Subject to the requirements of ER 7.1 and ER 7.2,
and paragraph (c) herein, a lawyer may initiate written communication, not involving personal or telephone contact, with persons
known to need legal services of the kind provided by the lawyer
in a particular matter~ for the purpose of obtaining professional
employment. Such written communication shall be clearly marked
on the envelope and on the first page of the communication contained in the envelope, as follows:
ADVERTISING MATERIAL:
THIS COMMERCIAL SOLICITATION HAS NOT BEEN
APPROVED BY THE STATE BAR OF ARIZONA
Said notification shall be printed in red ink, in all capital
letters, in type size at least double that used in the body of
the communication. If the solicitation advertises representation
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on a contingent or “no recovery, no fee” basis, it shall also
state that the client may be liable for costs and expenses.
*****
RELEVANT PRIOR ARIZONA OPINION:
Opinion No. 89-09 (November 6, 1989)
OPINION:
In our Opinion No. 89-09 (November 6, 1989), we reviewed
three attorneys’ proposed targeted direct mailings to prospective
clients. We concluded that targeted direct mailings to prospective clients are constitutionally protected, and that the type of
written communications proposed by the three attorneys was ethically permissible. We also concluded, however, that portions of
the written communications were false and misleading under ER
7.1, or constituted overreaching under ER 7.2(f)(3), and that the
proposed targeted direct mailings must be redrafted in accordance
with the opinion. The reader is referred to that opinion.
Here, the brochure and checklist -- the written communications -- will be plainly marked “Advertisement” on the face of
the envelope and at the top of each page of the written communications, in accordance with ER 7.2(e)(l). Note that ER 7.3(b)
does not apply, since these communications are not being directed
to ‘persons known to need legal services of the kind provided by
the lawyer in a particular matter.” The inquiring attorney’s
direct mail advertisements are to be sent to members of the general public.
The inquiring attorney is concerned primarily with whether
his providing the checklist and wallet as parts of his advertising mailing constitutes “giv[ing] anything of value to a person
for recommending the lawyer’s services . . .,” prohibited to
Arizona’attorneys by ER 7.2(c). We conclude that it is not. ER
7.2(c) provides in part that:
A lawyer shall not give anything of value to a person
for recommending the lawyer’s services, except that a
lawyer may pay the reasonable cost of advertisirvaor
written communication permitted by this rule ....
(emphasis added)
ER 7.2(c) is intended to prohibit payments to “touts,” “shills,”
“runners,” and others who receive compensation for the actual
‘recommendation” itself. See 2 Hazard & Hodes, The Law of Law*
(Zd ed” 1990), s 7.2:401, at 871. It is, by its terms,
not intended to prohibit payments by an attorney of the reasonable costs of advertising or written communication permitted by
the rule which is sent to one who, if the advertising is successful, will become the attorney’s client. The proposed advertising here is not being sent to specific individuals with the
intent that they will “tout” the attorney to othersc It is being
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sent to members of the general public with the intent that the
recipients will retain the attorney if and when they have need of
an attorney. The attorney may pay the reasonable cost of the
advertising proposed here and not run afoul of ER 7.2(c).
This committee has not previously addressed one type of advertising medium (vinyl wallet embossed with the law firm’s name)
proposed by the inquiring attorney. ER 7.2(a) reads that: “[A]
lawyer may advertise services through public media, such as a
telephone directory, legal directory, newspaper or other periodical, outdoor, radio or television, or through written communication.” (emphasis added). The list is not intended to be exclusive. Although not expressly referred to in other states’ professional ethics codes, other forms of advertising have been held
permissible. See Alabama State Bar Ethics Opinion 86-117
(11/21/86) (ABA/BNA Lawyers‘ Manual on Professional Conduct,
p. 901:1014) (lawyer specializing in social security law may advertise on public bench located outside of social security office
provided advertisement complies with Code’s provisions on advertising); Illinois State Bar Association Ethics Opinion 812
(12/4/82) (ABA/BNA Lawyers’ Manual, supra, p. 801:3015) (law firm
may advertise on pens of nominal value distributed to clients);
State Bar of Michigan Informal Opinion CI-1121 (2/25/86) (ABA/BNA
Lawyers’ Manual, supra, p. 901:4751) (lawyer may advertise on
labels on inside covers of law books contributed by him to a jail
library provided the advertising matter is not false, fraudulent,
misleading or deceptive); New Jersey Advisory Committee on Professional Ethics Opinion 594 (10/29/86)
(ABA/BNA Lawyers’ Manual,
supra, p. 901:5804) (law firm may allow its name to be used in a
dignified manner on shirts of local children’s athletic team if
in compliance with Code’s provisions on advertising); Ohio State
Bar Association Opinion 87-2 (6/22/87}
(ABA/BNA Lawyers’ Manual,
supra, p. 901:6826) (law firm may distribute a brochure about the
firm if information set forth is accurate, can be factually substantiated, and is not misleading); State Bar of Texas Opinion
427 (undated - late 1984 or early 1985) (ABA/BNA Lawyers’ Manual,
supra, p. 801:8306] (law firm may pay to advertise its name,
address, and telephone number on a plastic telephone book cover
and on a city map indicating the firm’s office location which are
mailed to new community residents, provided the information is
not false or misleading).
We conclude that advertising the inquiring attorney’s firm
name on a vinyl wallet is advertising through “public mediazm and
is permissible so long as the advertising complies with the requirements of ER 7.1, other rules of professional conduct, and
the committee opinions interpreting those rules.
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