Opinion No. 1994-8

(Inquiry No. )

Propriety of letter soliciting class action claimants.
An attorney may solicit potential claimants to join in a class action by sending a letter to those claimants.
Code Provisions:
DR 2-101(A)
Facts Presented:
Inquiring counsel has been retained by several New York State residents who have suffered failures of a certain prosthesis, and has in fact commenced actions in two United States District Courts in New York. Inquiring counsel strongly suspects that there is a basis for a class action nationwide due to the failure of this product.
Is inquiring counsel legally and ethically permitted to write directly to identified potential claimants to seek information as to whether or not they have a claim pending, and if not, whether they wish to be represented by inquiring counsel as part of a class action?
While this Committee does not determine issues of law, there is no ethical bar to such a letter as long as its content meets Code requirements.
In Zauderer v. office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 85 L.Ed.2d 652 (1985), the United States Supreme Court was confronted with a situation in which an attorney had placed an advertisement in 36 Ohio newspapers publicizing his willingness to represent women who had suffered injuries resulting from their use of a contraceptive device known as the Dalkon Shield Intrauterine Device. The advertisement stated:

“The Dalkon Shield Interuterine (sic] Device is alleged to have caused serious pelvic infections resulting in hospitalizations, tubal damage, infertility, and hysterectomies. It is also alleged to have caused unplanned pregnancies ending in abortions, miscarriages, septic abortions, tubal or ectopic pregnancies, and full-term deliveries. If you or a friend have had a similar experience do not assume it is too late to take legal action against the Shield’s manufacturer. Our law firm is presently representing women on such cases. The cases are handled on a contingent fee basis of the amount recovered. If there is no recovery, no legal fees are owed by our clients.”

The ad concluded with the name of the attorney’s law firm, its address, and a phone number. 471 U.S. at 630-631.

The Supreme Court first observed that the advertisement was not false or deceptive in violation of DR 2-101(A):

“The advertisement did not promise readers that lawsuits alleging injuries caused by the Dalkon Shield would be successful, nor did it suggest that appellant had any special expertise in handling such lawsuits other than his employment in such other litigation. Rather, the advertisement reported the indisputable fact that the Dalkon Shield has spurned an impressive number of lawsuits and advised readers that appellant was currently handling such lawsuits and was willing to represent other women asserting similar claims. In addition, the advertisement advised women that they should not assume that their claims were time-barred — advice that seems completely unobjectionable in light of the trend in many States toward a “discovery rule” for determining when a cause of action for latent injury or disease accrues. The State’s power to prohibit advertising that is “inherently misleading,” [citation omitted], thus cannot justify Ohio’s decision to discipline appellant for running advertising geared to persons with a specific legal problem.” 471 U.S. at 639-641.

Finding that the advertisement consisted of commercial speech protected by the First Amendment, the U.S. Supreme Court then struck down the rule as applied to prohibit the advertisement’s publication.

Although Zauderer involved a newspaper advertisement, in Shapero v. Kentucky Bar Association, 486 U.S. 466, 100 L.Ed.2d 475 (1988) the Supreme Court specifically observed that the First Amendment’s protection of advertising extended to mail solicitation:

“Ohio could no more prevent Zauderer from mass-mailing to a general population his offer to represent women injured by the Dalkon Shield than it could prohibit his publication of the advertisement in local newspapers.” Shapero, supra, 486 U.S. at 473.

Shapero then held that targeted direct mail solicitations were no more offensive than mass mailings.

This Committee, too has regularly approved targeted direct mail solicitation by attorneys. Nassau County opinion ## 94-5 (direct mail solicitation of appellate employment by sending a letter to a litigant whose case has, in a decision published in the Law Journal, been dismissed, approved) , 93-38 (direct mail solicitation of mortgage foreclosure defendants approved) , 93-10 (direct mail solicitation of homeowners who have placed “for sale” signs on their homes approved), 93-1 (direct mail solicitation of persons charged with specific crimes approved) , and 90-3 (direct mail solicitation of persons charged with Vehicle and Traffic Law violations approved).

As long as the proposed letter’s content comports with the requisites of DR 2-101(A), and is not false or deceptive — something upon which this Committee has not been asked to opine, and upon which it makes no comment — there is no ethical prohibition against its dissemination. As usual, an attorney mailing any advertising material must comply with the Code’s filing requirements. Since the litigation commenced is pending in two United States District Courts in New York, counsel should also investigate whether there are any applicable ethical requirements different from or in addition to the New York Code requirements.

[Approved by the Executive Subcommittee on 2/1/94; approved by the Full Committee on 2/16/94]