(1) May an attorney engage in direct mail communication which is mailed to every defaulting mortgager whose home is advertised for foreclosure;
(2) May an attorney engage in direct mail communication to C.P.A.'s requesting them to recommend his service as a tax advisor to their clients.
(1) Disciplinary Rule 2-101(M) of the Code provides, in part, as follows:
... direct mail ... may be used, but only if the contents comply with all requirements that pertain to the print media, ... and do not engage in solicitation.
In Kentucky Bar Association v. Stuart, 568 S.W. 2d 933 (Ky. 1978), the Kentucky Supreme Court declined to discipline attorneys for mailing letters to real estate brokers. The letters stated the prices charged for routine legal services in real estate transactions, the time in which services would be rendered, and the qualifications of those who would perform the services. The Court found that the letters did not constitute in-person solicitation any more than other forms of advertising. The Court reasoned that the fact that the advertisement was in the form of a letter did not increase the likelihood of overreaching or deceptive practices, potential dangers in all advertising.
In January, 1982, the United States Supreme Court in In Re: R.M.J., 102 S. Ct. 929 (1982), upheld a lawyer's right to mail professional announcement cards to non-clients, holding that states may regulate lawyer advertising that is actually or inherently misleading, but no more extensively than reasonably necessary to further substantial interests.
Direct mail advertisements 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, deliberate and make critical comparisons free from pressures of time and without being overpowered by the personality of a lawyer who solicits business personally.
There is no impropriety in engaging in direct mail advertising which is mailed to every defaulting mortgager whose home is advertised for foreclosure.
The letter, in this instance, states:
I have experience ... to provide immediate financial relief for persons such as yourself to stop foreclosure proceedings.
The above language is misleading and in violation of Disciplinary Rule 2-101(A).
(2) The New York Supreme Court, Appellate Division in the case of In Re: Greene, 54 N.Y. 2d 118, 429 N.E. 2d 390, 444 N.Y.S. 2d 883 (1981), held that an attorney who mailed one thousand flyers to real estate brokers in which he requested the brokers to refer individuals to him for legal services in the sale or purchase of real property constituted direct mail solicitation of clients through third person which was prohibited and not constitutionally protected.
Direct mail communication to C.P.A.'s requesting them to recommend the attorney's services as a tax advisor constitutes third party solicitation and is improper.
This 17th day of October , 1984.
O. B. Hofstetter, Jr.
William R. Willis
APPROVED AND ADOPTED BY THE BOARD