Opinion No. 1990-3

(Inquiry No. 262 )

Attorney’s direct mail solicitation

Subject to certain restrictions, an attorney may solicit, by direct mail, 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.

Code Provisions:
Canon 2
Disciplinary Rule 2-101

Described Facts:
The inquiring attorney represents a client who is charged with driving while intoxicated. Approximately two weeks after the client was arraigned, the client received a letter from another attorney soliciting employment as the attorney for the DWl case.

The inquiring attorney is interested in sending similar letters to people who have been arrested for violations of the Vehicle & Traffic Law, as well as to people involved in automobile accidents or in need of attorneys to probate a will or administer an estate. The inquiring attorney seeks the opinion of the Committee as to the propriety of such direct mail solicitation.

May an attorney, by direct mail, solicit persons charged with violations of the Vehicle & Traffic Law, as well as people involved in automobile accidents or persons who, the attorney believes, may require an attorney to handle certain estate matters?

The contemplated conduct is permissible, subject to certain restrictions and rule requirements.

The propriety of direct mail solicitation by attorneys was squarely addressed in MATTER OF VON WIEGEN, 63 N.Y.2d 163, 48lNYS2d 40, 470 N.E.2d 838 (1984).

In the MATTER OF VON WIEGEN, the attorney solicited by mail the victims and families of the 250 persons injured in the Hyatt Regency Hotel in Kansas City, Missouri, in July, 1981. The Court of Appeals held that the blanket prohibition of mail solicitation of accident victims violates the rights of expression under the First and Fourteenth Amendments of the United States Constitution.

The Court stated, at 63 N.Y.2d 174:

“Furthermore, mail solicitation does not constitute a substantial invasion of privacy or present a risk of undue pressure. The simple answer to the claim that it does is that the recipient of a lawyer’s letter ‘may escape exposure to objectionable material simply by transferring [it] from envelope to wastebasket’ (CONSOLIDATED EDISON CO. v. PUBLIC SERV. COMM., 447 U.S. 530, 542,100 S.Ct. 2326,2335, supra; MATTER OF KOFFLER, 51 N.Y.2d 140,149,432 N.Y.S.2d 872,412 N.E.2d.927, supra). Nor is avoidance of the intrusion more difficult because the families of accident victims and the victims themselves may be emotionally upset when they receive a solicitation letter. As we noted in KOFFLER, it is not enough to justify a ban upon solicitation that in some situations, such as marital discord or a death in the family, the letter might be offensive (supra, at page 149, 432 N.Y.S.2d 872, 412 N.E.2d 927). The same observation applies to accident victims and their families.”

Accordingly, direct mail solicitation of persons charged with violations of the Vehicle & Traffic Law, as well as peoiple involved in automObile accidents, or persons who may require an attorney to handle certain estate matters, is not prohibited.

Professional advertising is governed by Canon 2, its attendant ethical considerations and disciplinary rules, and rules of court. Disciplinary Rule 2-101, “Rules of Court Applicable to Advertising and Publicity of Lawyers,” sets forth specific guidelines to which all lawyer advertising must conform.

For example, Paragraph A of Disciplinary Rule 2-101 prohibits statemetns that are false, misleading or cast reflection on the legal profession as a whole. Paragraph B prohibits puffery, self-laudation, claims regarding the quality of the lawyer’s services and claims that cannot be measured or verified. Paragraphs E, G, H and I regulate the publication of fees for the attorney’s services.

The requirements of Rule 691.22 of the Appellate Division, Second Department (22 NYCRR 691.22) or other similar court rules must also be observed, including requirements for filing and retention of advertising materials.

Although direct mail solicitation is permissible, the Committee cautions attorneys that the actual content a direct-mail letter soliciting employment must comply with the requirements of court rules and the Code of Professional Responsibility.

(Approved by full Committee 1-17-90)