BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS

Opinion No. 1994-5

(Inquiry No. )

Topics:
Propriety of letter soliciting appellate employment sent to litigant whose case has been dismissed in decision published in Law Journal.
Digest:
An attorney may solicit appellate employment by sending a letter to a litigant whose case has, in a decision published in the Law Journal, been dismissed.
Code Provisions:
DR 7-104
Facts Presented:
Inquiring counsel, having noted a decision dismissing a litigant’s case, wishes to send the litigant a solicitation letter offering, ?[i]n case you do not have any legal representation for appealing this decision” (emphasis in original) to handle the appeal on a contingency basis, and asking the client to contact him at an early opportunity “if you require my services for an appeal . . . ” (emphasis added) . The proposed mailing has been filed with the departmental grievance committee pursuant to DR 2-101.
Inquiry:
May an attorney solicit appellate employment by sending a letter to a litigant whose case has been dismissed in a decision published in the Law Journal?
Determination:
Yes
Analysis:
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 United States 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).

The only thing which could conceivably differentiate the instant situation from those prior situations is the higher probability that the party under these circumstances will already be represented by counsel.

As this Committee has previously noted, an attorney’s retention to represent a client at the trial level does not necessarily constitute an employment of that attorney for purposes of appeal. Nassau County opinions #0 94-1, 89-19, and 8/87. See, also, Gair, Gair & Conason v. Stier, 123 A.D.2d 556 (Ist Dep’t 1986) (dissenting op.); Matter of Wise, 172 A.D.2d 491 (1st Dept 1916). There is, then, conceptually nothing to distinguish the instant case from other situations in which direct mail solicitation has been approved despite the fact that the parties might already be represented by counsel, e.g., defendants in foreclosure actions, persons charged with Vehicle and Traffic Law Violations or persons charged with specific crimes.

Moreover, there is nothing in the Code which would prohibit the direct mail solicitation of an individual simply because that person is already represented. DR 7-104 (A) (1) prohibits direct communication with certain parties represented by counsel, but only if the communication is made “[d]uring the course of the representation of a client,” and the communication is with a party “represented by a lawyer in that matter . . . . ” (emphasis added). This provision is thus inapplicable here.

(Approved by the Executive Subcommittee on 1/18/94; approved by the Full Committee on 1/26/94)