BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS

Opinion No. 1995-1

(Inquiry No. )

Topics:
Attorneys direct mail solicitation to targeted areas
Digest:
Direct mail solicitation of potential clients by lawyers is constitutionally protected and may be regulated but not prescribed, but the particular letters inquired about are misleading as written.
Code Provisions:
DR 2 – 101;
EC 2 – 10;
DR 2 -103;
DR 2 – 104 JUDICIARY LAW s479
Facts Presented:
Inquiring counsel proposes by two letters to communicate with potential clients about the possibility of bringing suit against landlords where children living in the apartments may be suffering from the effects of lead poisoning. The letters read as follows:

“Dear _________________:

Our law firm represents a child in your building who has lead poisoning. It is possible that lead paint was also used in your apartment. Peeling paint, especially on windowsills, molding or pipes, is a signal that there might be lead in your home. Children get lead poisoning from eating paint chips or getting lead dust on their hands or toys and then putting them in their mouths. The reason why children eat the paint chips that lead is sweet, like candy.

If you have children under the age of seven we encourage you to have your children tested for lead by their doctor as soon as possible. It is important to have your children tested because lead is dangerous. Lead causes learning problems. In serious cases, it can even cause mental retardation. The affects of lead are also not reversible.

We are suing the landlord of your building for not providing a safe place for children to live. If you have any questions about lead poisoning, lawyers in our office will be glad to speak to you at no charge.

Very truly yours,

Dear __________________:

Our law firm is very concerned about lead poisoning. If your building was built before 1978 it is possible that lead paint was used. Peeling paint, especially on windowsills, molding or pipes, is a signal that there might be lead in your home. Children get lead poisoning from eating paint chips or getting lead dust on their hands or toys and then putting them in their mouths. The reason why children eat the paint chips is that lead is sweet, like candy.

Lead is very dangerous because it attacks children’s bodies. Lead causes learning problems. In serious cases it can even cause mental retardation.

We encourage you to have your children tested for lead by their doctor. There are many clinics which specialize in lead poisoning as well. It is important to have your children tested because the affects of lead are not reversible.

Our law firm is representing children with lead poisoning. We are suing the landlords who do not provide safe places for children to live. If you have any questions about lead poisoning, lawyers in our office will be glad to speak to you at no charge.

Very truly yours,

Inquiry:
Are the letters permissible under the code?
Determination:
The proposed letters are not permissible as written.
Analysis:
The United States Supreme Court, in Shapiro – v- Kentucky Bar Association held that a State may not place a blanket prohibition on the sending of targeted direct mailings by lawyers (486 U.S. 466 (1988) ; also see Von Wiegen -v- Committee on Professional Standards, 61- N.Y.2d 163, 481 N.Y.S.2d 40).

As the Court stated in Von Wiegen at p 275: . . . the victims and their families had evident need for legal counsel and the mail solicitation of them arguably performed an informational function which the State could not proscribe. As the Supreme Court has said, it is better to address such wrongs than to suffer in silence (see Bates -v- State Bar of Ariz 433 U.S. 350, 364, 376).”

The Von Wiegen case involved a New York lawyer sending a letter of direct solicitation to the victims and/or families of the Hyatt Regency Hotel disaster in Kansas City, Missouri. The Court of Appeals found such direct mail solicitation could not be proscribed.

This committee has determined that it was appropriate to use targeted letters to solicit foreclosure defendants (opinion 87-21). In Opinion 90-3 the committee determined that direct mail solicitation of persons charged with violations of the Vehicle and Traffic Law as well as persons who may require an attorney to handle certain estate matters is not prohibited. Again in opinion 92-21 this committee determined that 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 was not prohibited and again in opinion 93- 1 determined that a letter directed toward parties charged with certain misdemeanors or penalties was also permissible. Finally, in Opinion 93-10 the committee determined that direct solicitation by mail to persons who have placed “For Sale” signs, upon their homes was permissible.

Based upon the disciplinary rules, case law and opinions it is permissible for the attorney to send letters to people who may need specific legal services. However, this committee is of the opinion that the last sentence in each letter is misleading as it invites recipients to call the attorneys with “questions about lead poisoning” without limitation. This statement implies that the attorneys are qualified to answer medical questions, scientific questions, and other questions beyond the traditional expertise of lawyers. To avoid misleading potential clients and members of the general public, the attorneys should only be inviting questions dealing with legal issues or litigation. Otherwise, the letters may lure people to call even if they have no desire to contact a lawyer.

This committee notes that all mailings are subject to the requirements of DR2-101, including without limitation, filing copies of the mailing and predetermined address list with the Departmental Disciplinary Committee of the appropriate Judicial Department. Furthermore, the lawyers who mail targeted letters are responsible for the accuracy of all facts stated in the letters. This committee does not provide opinions on the accuracy of scientific or medical information contained in proposed mailings.

(Approved by Executive Subcommittee on 11/l/94; Approved by Full Committee on 11/30/94)