BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS

Opinion No. 1993-1
(Inquiry No. 440)
 
Archive of Ethics Opinions
 
Re:
Propriety of attorney's direct mail solicitation of potential clients, where correspondence is directed toward persons charged with specific crimes; contains a listing of certain of the defendant's rights, potential defenses, and penalties faced for conviction of various crimes; sets forth that the attorney has represented more than a specified number of clients charged with certain crimes; contains a statement that there are "Reasonable Fees and Payment Plans Available"; and contains a statement that the attorney has a "Practice Concentration in Criminal Law."
 
Digest:
1. An attorney may solicit professional legal services, by direct mail solicitation, to persons charged with specific crimes, since such advertisement does not impose the pressures associated with "in-person solicitation."

2. In light of its potential educational benefit, an attorney may, through direct mail solicitation, list certain rights, defenses and penalties associated with particular crimes.

3. An attorney may, through direct mail solicitation, state a specified number of cases of a particular kind which he has handled, provided that the number is verifiable and capable of accurate measurement.

4. Provided that the Bar is not adversely reflected upon, an attorney may state that he has "Reasonable Fees and Payment Plans Available."

5. An attorney is permitted to advertise by using the term "Concentration in" provided that the practice is verifiable and capable of measurement.
 
Code Provisions:
Canon 2
DR 2-101(A)
DR 2-101(B)
DR 2-101(C)
DR 2-101(F)
DR 2-103 (A)
DR 2-105(A)
DR 2-106
EC 2-2
EC 2-5
EC 2-9
EC 2-10
 
Described Facts:
Inquiring attorney proposes to engage in a mailing of correspondence to solicit his professional legal services to the public. The text of the two letters submitted for this Committee's review contains various statements that are directed specifically to persons charged with specific crimes (assault and/or petit larceny) and contains a listing of various crimes with respective penalties along with certain of defendants' rights and defenses to these particular crimes. The inquiring attorney states in these letters that he "has represented over 100 clients charged with Felonies, and over 1,000 clients charged with Misdemeanors" and that he has a "Practice Concentration in criminal Law." The letters also contain a statement that "Reasonable Fees and Payment Plans (are) Available." The letters also contain a listing of office hours, the office address, the name of the attorney and a statement that in-office consultations are "Free."
 
Inquiry:
Inquiring counsel asks the following:

1. Is it permissible for an attorney to solicit legal business by direct mail, to persons charged with specific crimes (assault and/or petit larceny)?

2. Is it permissible for an attorney, through direct mail solicitation, to list certain of the defendant's rights, potential penalties for conviction, and potential defenses?

3. Is it permissible for an attorney, through direct mail solicitation, to state that the attorney has represented more than a specified number of clients charged with felonies and misdemeanors?

4. Is it permissible for an attorney, through direct mail solicitation, to assert that there are "Reasonable Fees and Payment Plans Available."

5. Is it permissible for an attorney, through direct mail solicitation, to advertise or publicly identify the area or areas in which the attorney practices, by using the terms "Concentration in?"
 
Determination:
1. Yes.
2. Yes.
3. Yes.
4. Yes.
5. Yes, with certain exception.
 
Analysis:
Initially, this Committee notes that all mailings are subject to the requirements of DR 2-101, including, without limitation, the requirement embodied in DR 2-101 (F) of filing copies of the mailing and any predetermined address list with the Departmental Disciplinary committee of the appropriate judicial department.

Inquiry #1. Subject to certain restrictions, it is permissible for an attorney to solicit legal business by direct mail, to persons charged with specific crimes (assault and/or petit larceny).

DR 2-103(A) specifically prohibits an attorney, either directly or indirectly, from seeking "professional employment for the lawyer or a partner or associate of the lawyer from a person who has not sought advice regarding employment of the lawyer in violation of any statute or existing court rule in the judicial department in which the lawyer practices." However, nei ther statute nor code provision can constitutionally prohibit the inquiring attorney's advertisement of professional services by direct mail for the reasons hereafter set forth.

The New York State Court of Appeals in Matter of Von Wiegen, 63 N.Y.2d 163,481 N.Y.S.2d 40,470 N.E.2d 838 (1984), held that a blanket prohibition of mail solicitation of accident victims violates an attorney's rights of expression, under the First and Fourteenth Amendments of the united States Constitution. Of particular significance was the Court's distinction between "inperson solicitation" and "mail solicitation":

"We view the present case as closer to Koffler, basing our decision on the distinction between mail solicitation and inperson solicitation of accident victims because the latter permits the exertion of subtle pressure and often demands an immediate response without providing an opportunity for comparison and reflection. The Supreme Court's decision in Ohralik was based on these factors, the elements of intimidation and duress (see Ohralik, 436 U.S. 447, 462-463, 464-466, 98 S.ct. 1912, 1921-1923, supra). They are not present in the case of mail solici tation and, as wi th the real estate client in Koffler, the process of decisionmaking may actually be aided by information contained in the mailing."

In Opinion #90-3, this Committee determined that direct mail solicitation of persons charged with violations of the Vehicle & Traffic Law, as well as people involved in automobile accidents, or persons who may require an attorney to handle certain estate matters, is not prohibited. Accord, Nassau County Opinion #92-21 (determining that "[t]he direct mail solicitation of a specified target audience consisting of a class of individuals believed likely to require legal assistance in areas in which the attorney is experienced is not prohibited"). Based upon the aforementioned Disciplinary Rules, case law and opinions, it is permissible for an attorney, through direct mail, to solicit persons charged with specific crimes.

Inquiry #2. It is permissible for an attorney, through direct mail solicitation, to list certain of the defendant's rights, potential defenses, and penalties faced for the conviction of various crimes. The educational value to the public is of paramount importance.

EC 2-2 of the Code of Professional Responsibility specifically provides that:

"The legal profession should help the public to recognize legal problems because such problems may not be self-revealing and often are not timely noticed. Therefore, lawyers should encourage and participate in educational and public relations programs concerning our legal system with particular reference to legal problems that frequently arise."



EC 2-10 further provides:

"A lawyer should ensure that the information contained in any advertising which the lawyer publishes, broadcasts or causes to be published or broadcasted, is relevant, is disseminated in an objective and understandable fashion, and would facilitate the prospective client's ability to select a lawyer."

the public in facilitating the potential client's ability to select an attorney. It also does not appear to be selflaudatory and solely to benefit the attorney. It appears to be in accordance with the aforementioned Ethical Considerations and the policy behind the Code in prohibiting self-laudatory statements and self-aggrandizement.

Inquiry #3. direct mail, to state a specified number misdemeanors.

DR 2-101(B) of the Code of Professional Responsibility specifically prohibits advertisements that contain puffery, selflaudation, claims regarding the quality of the lawyer's legal services, or claims that cannot be measured or verified. In Opinion #81-1, this Committee attempted to provide general guidelines for attorneys who advertised their professional legal services. This committee emphasized:

"Statements relating to a lawyer's relative volume of cases, or success rates in a particular area of practice appear to be prohibi ted under the code. Such statements are not only unverifiable, but may also give the appearance that the lawyer is preeminent in a particular field, which is improper, as a claim which cannot be measured or verified."

In opinion #81-91, the Association of the Bar of the City of New York Committee on Professional Ethics, in ruling upon a proposed letter to be distributed promoting the inquiring law firm's practice in the area of debt collection, stated:

"[T]here is nothing improper about a law firm claiming to offer a certain number of years experience in a particular area of law, but that number must accurately reflect the number of years of frequent practice in that area by a lawyer whose service will be available to clients to whom the offer is addressed. Thus, it is improper to base the claim on a cumulative numbers game: a seven-member law firm may not claim '35 years experience' on the basis that each member has practiced for five years. Rather, there must be a lawyer at the firm to whom clients can turn who has practiced in the area for 35 years."

In Opinion #487 (1978), the New York State Bar Association Professional Ethics Committee stated:

"A truthful representation, not otherwise deceptive or misleading, of a specified number of years' experience in an accurately identif ied area of practice, appears to be proper under the amended provisions of the Code. The information can be 'measured and verified.' DR 2-101(B). And, certainly, such information is 'relevant to the selection of the most appropriate attorney.' DR 2-101(0)."

Thus, statements of "relative volume" (e.g., having the "largest practice" or the "biggest caseload") and "success rates" have been prohibited, while statements of specified years of "frequent and substantial" practice have been approved. See, also, e.g., Opinion #92-21 of this Committee.

Based upon the aforementioned Disciplinary Rules and Opinions, just as it is permissible to state the specified years of an attorney's experience in an area of practice, it is permissible for an attorney, through direct mail solicitation, to state that he has represented more than a specified number of clients charged with felonies and misdemeanors, provided that the number stated is both measurable and verifiable.

Inquiry #4. It is permissible for an attorney, through direct mail solicitation, to state that there are "Reasonable Fees and Payment Plans Available."

EC 2-9 provides that "the attorney client relationship is personal and unique and should not be established as the result of pressures and deceptions." EC 2-10 further provides that a "lawyer should ensure that the information contained in any advertising is relevant, is disseminated in an objective and understandable fashion, and would facilitate the prospective client's ability to select a lawyer."

In Opinion #91-2, this committee found that advertising reduced rates may be permissible if the advertising attorney's customary fees are readily discernible. This committee expressed the concern that the advertisement would "appear to offer 'bargain basement' or 'sale' fees or otherwise 'cast reflection on the legal profession as a whole' as provided in DR 2-101(A)."

"Reasonable Fees" does not appear to evoke the same type of concern and a statement asserting same does not appear to be impermissible. However, the advertisement must not cast reflection upon the Bar as a whole as charging "unreasonable rates" and that this attorney is the only "honest lawyer" or the only attorney charging "reasonable fees". As this committee stated in Opinion #80-2, we reemphasize the ruling in Matter of Koffler and Harrison, (2nd Dept.), N.Y.L.J., 10/4/79 (p. 1, 15):

"Law is a profession. Thus, in the realm of the Law commercial speech has its boundaries and limits as well as its horizons. As a member of a most honorable profession, a member of the Bar must not forget that he is a lawyer first and only then, if proper, an entrepreneur."

Installment plans (involving interest payments) were considered by this Committee in Opinion #80-2 to be permissible, subject to certain guidelines. This Committee has no further information regarding the particular payment plan involved and will render no further determination of same.

Inquiry #5. It is permissible for an attorney to advertise or publicly identify, through direct mail solicitation, the area or areas in which he practices, by using the terms "Concentration in."

Canon 2 of the Code of Professional Responsibility provides: "A lawyer Should Assist the Legal Profession in Fulfilling its Duty to Make Legal Counsel Available." DR 2-105 (A) provides:

"A lawyer or law firm may publicly identify one or more areas of law in which the lawyer or the law firm practices or may state that the practice of the lawyer or law firm is limited to one or more areas of law."

Since 1908, the Bar has admonished attorneys not to advertise their services. However, in Bates v. State Bar, 433 U.S. 350,53 L.Ed2d 810 (1977), the Supreme Court held that free speech provides some protection to an attorney's right to disseminate, and the public's right to receive, information regarding the availability and cost of legal services. Attorneys are permitted to advertise or publicly identify the area or areas of law in which they practice, provided that they use terms such as "practice limited to" or "concentrating in," and not prohibited terms such as "expert" or "specialist" (see, ~, Nassau County opinion #81-1) . The information provided about the practice must also be capable of measurement or verification. (See opinions #81-1, #85-2 and #92-21 of this Committee, and Opinions #487 [1978] and #507 [1978] of the New York State Bar).

Based upon the aforementioned, the advertisement, stating "Concentration in criminal Law," a modification of "Concentrating In," would appear to be permissible. The Inquiring Attorney must also ensure, however, that said statement does not result in the appearance of his being preeminent in the field.

[Approved by the Executive Subcommittee on 1/5/93; approved by the Full Committee on 1/27/93]

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