83-F-49(a) - Vacated*

 

*Vacated by the Board of Professional Responsibility on September 11, 2015 due to changes in the law or rules.

FORMAL ETHICS OPINION 83-F-49(a)


Inquiry is made for a clarification of Formal Ethics Opinion 83-F-49 relating to conditions and circumstances of distribution and delivery of a law firm brochure to regular and prospective clients.


Formal Ethics Opinion 83-F-49 states there is no impropriety in producing and distributing a law firm brochure to regular clients and/or prospective clients upon request provided the requirements of Disciplinary Rules 2-101(C) and 2-101(M) are strictly followed.

Request has now been made for a clarification of the opinion and, specifically, the following questions:

  1. May a law firm brochure be distributed to regular clients without any request being made by these clients?
  2. May a law firm brochure be distributed to prospective clients without any request being made by these clients?
  3. May a lawyer personally deliver a law firm brochure to regular clients?
  4. May a lawyer personally deliver a law firm brochure to prospective clients?
  5. May a non-lawyer employee of the law firm, at the request of the lawyer, personally deliver a law firm brochure to regular clients?
  6. May a non-lawyer employee of the law firm, at the request of the lawyer, personally deliver a law firm brochure to prospective clients?
  7. May a lawyer send a law firm brochure by mail to regular clients?
  8. May a lawyer send a law firm brochure by mail to prospective clients?
  9. How may a law firm brochure be appropriately delivered to regular clients other than by the methods specified in questions 3, 5 and 7?
  10. How may a law firm brochure be appropriately delivered to prospective clients other than by the methods specified in questions 4, 6 and 8?

In January, 1982, the United States Supreme Court in the case of In Re: R.M.J., 102 S. Ct. 929, upheld a lawyer's right to mail professional announcement cards to non-clients. The Court reasoned that communications by mail involve no appreciable invasion of privacy and may, in fact, be less threatening or intrusive than aggressive multimedia advertising campaigns. The public can scrutinize letters carefully and recipients can deliberate and make decisions free from pressures and without being subjected to coercion, duress or harassment by a lawyer who solicits business personally.

The Tennessee Supreme Court responded to the R.M.J. decision on March 9, 1983 by amending the publicity rules of the Code of Professional Responsibility. The appropriate rules relating to the questions raised herein are Disciplinary Rules 2-102(A), 2-101(C) and 2-101(M), which are cited and quoted in Formal Ethics Opinion 83-F-49.

The intent and thrust of the recent decisions and rule changes are to foster informed decision making by potential consumers of legal services while safeguarding privacy and protecting against overreaching by lawyers.

It is appropriate to again state the provisions of Disciplinary Rule 2-101(M):

(M) Lawyers may advertise in established and regularly published print media and over established electronic media. Handbills, circulars, direct mail, or the like may be used, but only if the contents comply with all requirements that pertain to the print media, and if the persons who deliver the handbills, circulars, direct mail, and the like are not the lawyer or associates or members of the law firm advertised, and do not engage in solicitation.

Therefore, questions 1, 2, 7 and 8 are answered in the affirmative, provided the requirements of DR 2-101(C) and 2-101(M) are strictly followed.

Questions 3, 4, 5 and 6 are answered in the negative.

Questions 9 and 10 are answered by reference to DR 2-101(M).

This 18th day of January, 1984.

ETHICS COMMITTEE:

O. B. Hofstetter, Jr.
F. Evans Harvill
William R. Willis

APPROVED AND ADOPTED BY THE BOARD