Must a government lawyer entering private practice mark an announcement letter to fellow in-house counsel 'Advertisement'?

Plain-English summary

A lawyer leaving a government agency for private practice wanted to send a letter to in-house counsel who belonged to the Corporate Counsel Section of the county bar, describing his practice area and experience and enclosing recent articles. He asked whether those in-house counsel were "prospective clients" under ER 7.2(e), which would require marking the letter "Advertisement." The opinion concluded that the labeling requirement did not apply.

The committee first found ER 7.3 inapplicable because the letter was a general mailing, not directed to persons known to need legal services in a particular matter. It then explained that a likely purpose of the ER 7.2(e) label is to prevent alarming recipients who might be distressed to receive a letter from a lawyer, a concern the U.S. Supreme Court noted in In re R.M.J. and that the committee had relied on in Opinion 88-07 to exempt a firm's seminar brochure. Fellow lawyers, the committee reasoned, are accustomed to correspondence from other lawyers and would not be alarmed.

The committee added that communications aimed at other attorneys have generally been subject to less regulation than those sent to non-lawyers, citing its Opinion 90-04 (professional announcements to attorneys) and ABA Informal Opinion 84-1504, which involved the same situation of a lawyer leaving government practice and mailing letters to in-house counsel. The ABA committee had found that the potential for harm in solicitation "ordinarily is absent where the solicitation is directed solely to other lawyers," who can evaluate the lawyer's background and the benefit to their own clients. The committee concluded that ER 7.2(e) did not require the "Advertisement" label here, but stressed that the letter still had to satisfy ER 7.1 (no false or misleading information) and that a copy had to be kept for three years under ER 7.2(b).

Currency note

This opinion was issued in 1990, before the State Bar of Arizona's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Are in-house counsel "prospective clients" for purposes of the Arizona advertising label?

A: Not for this letter. The opinion held that a general announcement letter directed solely to fellow attorneys does not trigger ER 7.2(e)'s "Advertisement" labeling requirement.

Q: Does the letter still have to follow any rules?

A: Yes. The opinion required that the letter comply with ER 7.1 (no false or misleading content) and that a copy be retained for three years under ER 7.2(b).

Q: Why are mailings to other lawyers treated more leniently?

A: The opinion reasoned that the label exists largely to avoid alarming lay recipients, and that lawyers, who routinely receive correspondence from other lawyers and can evaluate a colleague's background, are not subject to that concern.

Background and rules framework

The opinion interprets Arizona ER 7.1 (Model Rule 7.1, false or misleading communications), ER 7.2 (Model Rule 7.2, advertising, including the ER 7.2(e) "Advertisement" marking and the ER 7.2(b) retention requirement), and ER 7.3 (Model Rule 7.3, direct contact with prospective clients). It relies on In re R.M.J., the firm's Opinions 88-07 and 90-04, and ABA Informal Opinion 84-1504.

Citations and references

Rules of Professional Conduct:

• MR 7.1 / ER 7.1 (false or misleading communications)
• MR 7.2 / ER 7.2 (advertising; "Advertisement" marking and retention)
• MR 7.3 / ER 7.3 (direct contact with prospective clients)

Cases:

• In re R.M.J., 455 U.S. 191 (1982), labeling may be a narrow means of preventing alarm from lawyer advertising

Other opinions cited:

• ABA Informal Opinion 84-1504 (1984): solicitation directed solely to other lawyers carries little potential for harm
• Arizona Opinion No. 88-07 (1988): seminar brochure need not be labeled
• Arizona Opinion No. 90-04 (1990): professional announcements to attorneys

See also

• AZ Ethics Op. 90-04: Professional Announcements and the Advertising Rules
• AZ Ethics Op. 90-07: Firm Brochures, Speaking Engagements, and Welcome Wagon

Source

• Landing page: https://tools.dev.azbar.org/RulesofProfessionalConduct/ViewEthicsOpinion.aspx?id=603

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

8/1990

Announcement letter of attorney who is counsel to governmental agency upon leaving his position to enter private practice.

FACTS

The inquiring attorney is counsel to a governmental agency. He is leaving his position to enter private practice. He wishes to send a letter to in-house counsel who are members of the Corporate Counsel Section of the County Bar Association. The proposed letter would inform the recipient that the attorney is entering private practice. It would describe the attorney's primary area of practice and his experience in that area. Enclosed with the letter would be copies of recent articles which further describe his area of practice. The letter would encourage recipients to learn more about the area of practice, and would announce the attorney's availability to be of service.

QUESTION

Does the term "prospective clients" in ER 7.2(e) of the Arizona Rules of Professional Conduct include in-house counsel who are members of the Corporate Counsel Section of the County Bar Association, thus requiring placement of the word "Advertisement" on the letters sent to the counsel?

ETHICAL RULES CITED

ER 7.1. Communications Concerning a Lawyer's Services

ER 7.2. Advertising

ER 7.3. Direct Contact with Prospective Clients

OPINION

The proposed letter would constitute a general mailing. It would not be sent to persons known to need legal services of the kind provided by the attorney. Hence, ER 7.3 is not applicable.

ER 7.2(e) requires that "[w]ritten communications to prospective clients for the purpose of obtaining professional employment" be plainly marked "Advertisement,” and that the responsible attorney retain a copy for three years. One likely reason for the labeling requirement is to prevent alarming the recipients of the letters who might be distressed by receiving a written document from an attorney. See our Opinion No. 88-07 (September 13, 1988) at 6, noting the United States Supreme Court's opinion in In re R.M.J., 455 U.S. 191, 102 S. Ct. 929, 71 L. Ed. 2d 64 (1982). In In re R.M.J., the Court suggested that the labeling requirement may be a sufficiently narrow means of regulating advertising in order to prevent such alarm (102 S. Ct. at 938, n.20). In our Opinion No. 88-07, however, we found that this requirement did not apply to a firm's seminar brochure because, in that case, there was no possibility of causing such alarm. Opinion No. 88-07 at 6. Similarly, it is unlikely that fellow lawyers would be alarmed by receiving the letter proposed here. Attorneys are certainly not unaccustomed to receiving correspondence from other attorneys.

Information designed to reach other attorneys generally has not been required to meet the same level of regulation as other informational advertisements sent to non-attorneys. One example is professional announcements that may be circulated to other attorneys, as well as to former clients, present clients, personal friends and relatives, without meeting the requirements of ER 7.2 and ER 7.3. See our Opinion No. 90-04 (March 6, 1990) at 8. Additionally, it has been held that restrictions regarding direct solicitation under former Model Rule 7.3 (the Model Rule in effect prior to the United States Supreme Court's opinion in Shapero v. Kentucky Bar Association, 486 U.S. 466, 108 S. Ct. 1916, 100 L. Ed. 2d 475 (1988)) did not apply to advertisements aimed at other attorneys. See ABA Informal Opinion 84-1504 (January 10, 1984). There, as here, an attorney was leaving government practice for private practice and wished to mail informational letters to in-house counsel. The A.B.A. Standing Committee on Ethics and Professional Responsibility found that former Model Rule 7.3 did not prohibit such communications because they were general and not directed at those known to need legal services in a particular matter. It also found that former Model Rule 7.3 did not prohibit solicitation of professional employment from lawyers "in their capacities as representatives of prospective clients as distinguished from their capacities as individuals in need of personal legal services." The A.B.A. committee noted that "[T]he potential for harm [in direct solicitation] ordinarily is absent where the solicitation is directed solely to other lawyers, who are capable of analyzing the background of the lawyer, and the benefits which might be afforded their own clients through the use of the lawyer's services." This same rationale also eliminates the need for restrictions on written communications to attorneys under ER 7.2(e). While this committee is not bound by the reasoning and conclusions of the A.B.A. committee, we generally regard them as highly persuasive precedent in our resolutions of identical or analogous ethical questions.

Based on the foregoing, we are of the opinion that ER 7.2(e) does not require that the word "Advertisement" be placed on the proposed letters. The rationale for such a labeling requirement is not present when the letter is being sent solely to fellow attorneys.

The proposed letter must, of course, comply with ER 7.1 and not contain any false or misleading information, and a copy of the letter must be kept for three years after its last dissemination along with a record of when and to whom the letter was sent. ER 7.2(b).

©State Bar of Arizona 1990