Ethics Opinions

 
NASSAU COUNTY BAR ASSOCIATION
COMMITTEE ON PROFESSIONAL ETHICS
Archive of Ethics Opinions
Opinion No.: 1995-7
Topics: Propriety of cover letter and firm brochure soliciting parents of prospective college students.
Digest: An attorney may solicit the parents of prospective college students for legal assistance with respect to college financial aid programs by mailing a letter and brochure to those parents.
Code Provisions: DR 2-101
DR 2-101(B)
DR 2-102(B)
Facts Presented: Inquiring counsel proposes to commence at targeted direct mailing of a brochure and cover letter describing his practice and the legal services he provides to parents of prospective college students selected from a mailing list to be purchased later. The materials identify themselves as coming from "The Law office of [inquiring counsel]," and state, inter alia, that "The Law office provides counseling an college financial. assistance to students and their parents to help them negotiate the various federal and state entitlement programs with a view towards managing their prospective costs of higher education.'' The literature then lists areas with respect to which "The Law Office now provides advice," and further states that "The Law office also practices in several other areas of law including (listed areas]."
Inquiry: Are the method and form of the proposed advertising ethically proper?
Determination: Yes.
Analysis:

In Nassau County Opinion #94-5, this Committee approved the direct mail solicitation of potential appellate litigants by sending letters to those whose cases had been dismissed in published Law Journal decisions. This Committee there observed:

In Nassau County Opinion #93-38, this Committee observed that in Shapero v. Kentucky Bar Association, 486 U.S. 466, 100 L.Ed.2d 475 (1988), the U.S. Supreme Court held that targeted direct mail solicitation letters from attorneys - such as the one proposed by inquiring counsel - constitute constitutionally protected commercial speech. This Committee in Nassau County Opinion #93-38 thus approved the targeted direct mail solicitation of mortgage foreclosure defendants - the same type of direct mail solicitation which had been approved by the Supreme Court in Shapero. Indeed, this Committee has regularly approved targeted direct mail solicitation by attorneys. Nassau County Opinion #39-88 (direct mail solicitation of clients and non-clients approved), 90-3 (direct mail solicitation of persons charged with Vehicle and Traffic Law Violations approved), 93-1 (direct mail solicitation of persons charged with specific crimes approved), and 93-10 direct mail solicitation of homeowners who have placed "for sale" signs on their homes approved).

 

See also Nassau County Opinion #94-8 (direct mail solicitation of' prospective class action claimants approved) . As there is nothing conceptually to distinguish the instant situation from other situations in which direct mail solicitation has been approved, there would be nothing ethically improper in inquiring counsels, proposed methodology, i.e., direct mailing.

 

The materials do not appear to solicit inquiries outsider the realm of legal issues or litigation, which solicitation would be proscribed. See Nassau County Opinion #95-1.

 

The materials do not appear to violate DR 2-101(B)'s proscription against puffery, self-laudation, claims regarding the lawyer's legal services, or claims that cannot be measured or, verified. Prohibited terms such as "specializing in" have been, avoided. The proposed literature does state that advice is provided. regarding matters such as "How to meet eligibility requirements for, entitlement," although some individuals may in fact not be able to meet these eligibility requirements at all. The literature also states that advice is provided regarding "How to obtain financial aid from available sources", when in fact some individuals may not, qualify for financial assistance from any source. However, this committee has previously held, in Nassau County Opinion #93-38, that:

A truthful and accurate mailing to a broad class of individuals will almost inevitably contain information or potential options which will on scrutiny turn out to be inapplicable to some of the recipients. The fact that the mailing on its face does not contain such a detailed statement of the conditions predicate to exercise of the listed options as to allow each recipient to independently make a legal evaluation of each option's availability to him does not render the mailing "deceptive" and outside the ambit of First Amendment protection. Most, if not all, legal concepts are highly complex and not readily reducible to short phrases. If attorneys are for this reason prohibited by this Committee from even apprising the lay public of the potential existence of legal options and the need to inquire further with an attorney, it would run afoul of the First Amendment protections delineated in Shapero. Moreover, the prohibition of a letter simply because it holds out as possibilities the exercise of certain options . . . would be a prohibition so broad as to both overrule Nassau County Opinion 4r93-1, and effectively repeal EC 2-2 (which encouraged the legal profession to help the public "recognize legal problems").

 

Inquiring counsel is reminded that all mailings are subject to the requirements of DR 2-101, including without limitation, filing of copies of the mailing and predetermined address list with the Department Disciplinary Committee of the appropriate Judicial Department. In addition, all lawyers who mail targeted materials are responsible for the accuracy of all facts stated in the materials.

 

DR 2-102(B) provides that a lawyer in private practice shall not practice under a trade name. A question has been raised as to whether the repeated use of the term "The Law Office" in. inquiring counsels proposed letter constitutes the utilization of' a prohibited trade name. In In Re Von Wiegen, 63 N.Y.2d 163, 176- 177 (1984), the Court of Appeals held:
The purpose of the prohibition against trade names embodied in DR 2-102(B) is to prevent the public from being deceived about the identity, responsibility, and status of those who use the name (citations omitted). The use of the motto "The Country Lawyer" in respondent's flyer did not deceive in that way because the lawyer's name was inserted apart from the motto. The case relied upon by the Appellate Division, Matter of Sheppard (92 A.D.2d 978), is distinguishable. In Sheppard, the court found that the corporate name the "People's Law Firm of Jan L. Sheppard, Attorney, P.C." constituted a trade name because it suggested that the firm was controlled by the public, received public funding or provided legal services on a nonprofit basis. No such potential for deception is present in the use of the term "The Country Lawyer" (emphasis added).

 

In accord with Von Wiegen, this Committee has opined that practicing, incorporating, or advertising under the name "Home Legal Care, P.C." would constitute a violation of Dk 2-102(B). Nassau county Opinion #90-16. However, the use of the term "The Law Office" in the present context appears to be more in accord with use of the motto "The Country Lawyer" as approved by Von Wiegen, particularly since as in Von Wiegen the inquiring counsel's name is inserted: both the letterhead and the proposed brochure identify "The Law office" as being "The Law Office of (inquiring counsel]." Consequently, the utilization of this term, as in Von Wiegen, does not present the potential for deception in which would prohibit its use. (Approved by the Executive Subcommittee on 5/23/95; Approved by the Full Committee on 5/31/95)

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