Can a lawyer mail the public a branded wallet and an accident checklist as advertising?

Plain-English summary

The inquiring attorney planned a direct-mail campaign to the public with three items: a brochure about his firm, a checklist of what to do after a car accident, and a vinyl wallet embossed with the firm's name, meant to hold the checklist in the recipient's glove compartment. The mailing would be marked "Advertisement" on the envelope and each page as ER 7.2(e)(1) required. His main concern was whether including the checklist and wallet amounted to "giv[ing] anything of value to a person for recommending the lawyer's services," barred by ER 7.2(c).

The committee concluded it did not. ER 7.2(c) is aimed at payments to "touts," "shills," "runners," and others paid for the recommendation itself. The wallet and checklist were not given to people so they would recommend the lawyer to others; they were sent to the public so that recipients would retain the lawyer if and when they needed one. A lawyer may pay the reasonable cost of permitted advertising, so the giveaways did not violate ER 7.2(c). The committee also noted that ER 7.3(b), governing targeted mail, did not apply because these materials went to the general public, not to persons known to need a particular kind of legal service.

On the novel medium, the committee concluded that advertising the firm's name on a vinyl wallet is advertising through "public media." ER 7.2(a)'s list of media (directories, newspapers, outdoor, radio, television, written communication) is not exclusive, and committees in other states had approved unconventional media such as public benches, pens, telephone-book covers, and athletic-team shirts. The wallet advertising was permissible so long as it complied with ER 7.1 and the other rules.

Currency note

This opinion was issued in 1991, before Arizona's 2003 adoption of the Ethics 2000 revisions to the Rules of Professional Conduct. The advertising rules (ER 7.1, ER 7.2, ER 7.3) it applied have since been revised. 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 Treat this page as historical context, not current guidance.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: Is giving away a branded item with a lawyer's advertising a payment "for recommending" the lawyer?

A: No. The opinion concluded ER 7.2(c) bars paying touts, shills, or runners for the recommendation itself; sending the public a checklist and wallet so recipients will hire the lawyer is paying the reasonable cost of advertising, which the rule allows.

Q: Can a lawyer advertise on an unusual item like a wallet?

A: Yes. The opinion concluded ER 7.2(a)'s list of media is not exclusive, so an embossed vinyl wallet is advertising through "public media," permissible if it is not false or misleading and complies with ER 7.1.

Q: Did the targeted-mail rule apply because these went out by direct mail?

A: No. The opinion concluded ER 7.3(b) did not apply because the mailing went to the general public, not to persons known to need a particular kind of legal service, and the materials were marked "Advertisement" as ER 7.2(e)(1) required.

Background and rules framework

The opinion applies the advertising rules as they stood in 1991. ER 7.1 (Model Rule 7.1) barred false or misleading communications about a lawyer's services. ER 7.2 (Model Rule 7.2) governed advertising, including (c)'s bar on giving value for recommendations and (e)(1)'s requirement that written communications be marked "Advertisement." ER 7.3 (Model Rule 7.3) governed direct contact with prospective clients, including (b)'s rules for mail targeted to persons known to need particular services.

Citations and references

Rules of Professional Conduct:

• MR 7.1 / AZ ER 7.1 (communications concerning a lawyer's services)
• MR 7.2 / AZ ER 7.2 (advertising; paying for recommendations; "Advertisement" marking)
• MR 7.3 / AZ ER 7.3 (direct contact with prospective clients)

Other opinions cited:

• Arizona Opinion 89-09 (1989): targeted direct mailings are constitutionally protected but must not be false, misleading, or overreaching
• Alabama State Bar Opinion 86-117 (1986); Illinois State Bar Opinion 812 (1982); Michigan Informal Opinion CI-1121 (1986); New Jersey Opinion 594 (1986); Ohio State Bar Opinion 87-2 (1987); Texas Opinion 427 (1984-85): unconventional advertising media permitted if not misleading

Other authority:

• Hazard & Hodes, The Law of Lawyering (2d ed. 1990), on the scope of ER 7.2(c)

See also

• AZ Ethics Op. 89-09: Targeted Direct-Mail Advertising
• AZ Ethics Op. 90-07: Communications Concerning Services
• AZ Ethics Op. 90-08: Communications Concerning Services

Source

• Landing page: https://tools.dev.azbar.org/RulesofProfessionalConduct/ViewEthicsOpinion.aspx?id=621

Original opinion text

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

3/1991

Law firm may mail to members of public a vinyl wallet embossed with law firm's name intended to hold checklist describing what a person should do after being involved in an automobile accident.

FACTS

Through direct mail, the inquiring attorney intends to send to the public the following items: (1) a brochure describing his law firm; (2) a checklist generally describing what a person should do in case he or she is involved in an automobile accident; and (3) a vinyl wallet embossed with the law firm's name. The wallet is intended to hold the checklist and is to be placed in the glove compartment of the recipient's automobile.

The inquiring attorney advises that the direct mail advertisements will be plainly marked "Advertisement" on the face of the envelope and at the top of each page of the written communication, as required by ER 7.2(e)(1). The inquiring attorney is concerned primarily with the question as to whether his providing the checklist and wallet as parts of his advertising mailing constitutes "giv[ing] anything of value to a person for recommending the lawyer's services . . .," prohibited to Arizona attorneys by ER 7.2(c).

QUESTION

Does the proposed advertising plan described comply with the Arizona Rules of Professional Conduct?

ETHICAL RULES INVOLVED

ER 7.1. Communications Concerning a Lawyer's Services

ER 7.2. Advertising (as amended August 1, 1989)

(c) A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may pay the reasonable cost of advertising or written communication permitted by this rule and may pay the usual charges of a not-for-profit lawyer referral service or other legal service organization.

(1) Such written communications shall be plainly marked "Advertisement" on the face of the envelope and at the top of each page of the written communication in type no smaller than the largest type used in the written communication; and

ER 7.3. Direct Contact With Prospective Clients (as amended August 1, 1989)

ADVERTISING MATERIAL:

THIS COMMERCIAL SOLICITATION HAS NOT BEEN

APPROVED BY THE STATE BAR OF ARIZONA

RELEVANT PRIOR ARIZONA OPINION

Opinion No. 89-09 (November 6, 1989)

OPINION

In our Opinion No. 89-09 (November 6, 1989), we reviewed three attorneys' proposed targeted direct mailings to prospective clients. We concluded that targeted direct mailings to prospective clients are constitutionally protected, and that the type of written communications proposed by the three attorneys was ethically permissible. We also concluded, however, that portions of the written communications were false and misleading under ER 7.1, or constituted overreaching under ER 7.2(f)(3), and that the proposed targeted direct mailings must be redrafted in accordance with the opinion. The reader is referred to that opinion.

Here, the brochure and checklist -- the written communications -- will be plainly marked "Advertisement" on the face of the envelope and at the top of each page of the written communications, in accordance with ER 7.2(e)(1). Note that ER 7.3(b) does not apply, since these communications are not being directed to "persons known to need legal services of the kind provided by the lawyer in a particular matter." The inquiring attorney's direct mail advertisements are to be sent to members of the general public.

The inquiring attorney is concerned primarily with whether his providing the checklist and wallet as parts of his advertising mailing constitutes "giv[ing] anything of value to a person for recommending the lawyer's services . . .," prohibited to Arizona attorneys by ER 7.2(c). We conclude that it is not. ER 7.2(c) provides in part that:

A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may pay the reasonable cost of advertising or written communication permitted by this rule .... (emphasis added)

ER 7.2(c) is intended to prohibit payments to "touts," "shills," "runners," and others who receive compensation for the actual "recommendation" itself. See 2 Hazard & Hodes, The Law of Lawyering (2d ed. 1990), § 7.2:401, at 871. It is, by its terms, not intended to prohibit payments by an attorney of the reasonable costs of advertising or written communication permitted by the rule which is sent to one who, if the advertising is successful, will become the attorney's client. The proposed advertising here is not being sent to specific individuals with the intent that they will "tout" the attorney to others. It is being sent to members of the general public with the intent that the recipients will retain the attorney if and when they have need of an attorney. The attorney may pay the reasonable cost of the advertising proposed here and not run afoul of ER 7.2(c).

This committee has not previously addressed one type of advertising medium (vinyl wallet embossed with the law firm's name) proposed by the inquiring attorney. ER 7.2(a) reads that: “[A] lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor, radio or television, or through written communication.” (emphasis added). The list is not intended to be exclusive. Although not expressly referred to in other states' professional ethics codes, other forms of advertising have been held permissible. See Alabama State Bar Ethics Opinion 86-117 (11/21/86) (ABA/BNA Lawyers' Manual on Professional Conduct, p. 901:1014) (lawyer specializing in social security law may advertise on public bench located outside of social security office provided advertisement complies with Code's provisions on advertising); Illinois State Bar Association Ethics Opinion 812 (12/4/82) (ABA/BNA Lawyers' Manual, supra, p. 801:3015) (law firm may advertise on pens of nominal value distributed to clients); State Bar of Michigan Informal Opinion CI-1121 (2/25/86) (ABA/BNA Lawyers' Manual, supra, p. 901:4751) (lawyer may advertise on labels on inside covers of law books contributed by him to a jail library provided the advertising matter is not false, fraudulent, misleading or deceptive); New Jersey Advisory Committee on Professional Ethics Opinion 594 (10/29/86) (ABA/BNA Lawyers' Manual, supra, p. 901:5804) (law firm may allow its name to be used in a dignified manner on shirts of local children's athletic team if in compliance with Code's provisions on advertising); Ohio State Bar Association Opinion 87-2 (6/22/87) (ABA/BNA Lawyers' Manual, supra, p. 901:6826) (law firm may distribute a brochure about the firm if information set forth is accurate, can be factually substantiated, and is not misleading); State Bar of Texas Opinion 427 (undated - late 1984 or early 1985) (ABA/BNA Lawyers' Manual, supra, p. 801:8306) (law firm may pay to advertise its name, address, and telephone number on a plastic telephone book cover and on a city map indicating the firm's office location which are mailed to new community residents, provided the information is not false or misleading).

We conclude that advertising the inquiring attorney's firm name on a vinyl wallet is advertising through "public media," and is permissible so long as the advertising complies with the requirements of ER 7.1, other rules of professional conduct, and the committee opinions interpreting those rules.

©State Bar of Arizona 1991