Can a Colorado lawyer send a newsletter about legal developments to clients and prospective clients, and must the lawyer disclose if someone else wrote it?

Plain-English summary

Opinion 74 (adopted July 26, 1986) addressed when a lawyer may distribute a newsletter, defined as a written communication containing information on current developments in the law or items of general interest about legal matters, sent periodically or at irregular intervals. The Committee analyzed newsletters as potentially carrying advertising and solicitation components under the Code of Professional Responsibility, while recognizing that some newsletters (for example, one prepared by a lawyer-employee of a public interest group) carry no such component and receive full First Amendment protection.

On newsletters to existing clients, the Committee concluded that a lawyer may send a newsletter on current legal developments so long as it contains no false, fraudulent, misleading, deceptive, or unfair statement and no self-laudatory statements or testimonials, consistent with DR 2-101 and the post-Bates consensus of ethics committees. Because a newsletter is by nature a general treatment of legal developments, sending it to a client is not normally "directed to a specific claim or matter involving the recipient," though in some circumstances it could be. On newsletters to non-clients and prospective clients, the Committee concluded that the stronger solicitation component does not by itself bar the practice: DR 2-101 provides special rules for solicitations motivated by pecuniary gain (which must be in writing, general in nature, and not directed to a specific claim), and a newsletter's invasive potential is minimal compared with in-person solicitation, since an unwanted newsletter can simply be discarded. A lawyer may therefore send a newsletter to non-clients, even with a significant pecuniary motive, provided the solicitation limits of DR 2-101 are met.

Finally, on authorship, the Committee concluded that it violates DR 2-101 for a lawyer to send a newsletter prepared by someone other than the sending lawyer without clearly identifying the actual author on the newsletter, because passing off another's work as the sending lawyer's own is misleading. In issuing this opinion the Committee withdrew its earlier Formal Opinion 42 (1968) as no longer viable after Bates and Zauderer and the Code amendments.

Currency note

This opinion was issued in 1986 under the former Colorado Code of Professional Responsibility, before the Colorado Rules of Professional Conduct took effect on January 1, 1993, and before Colorado's 2008 revisions to those rules. A 1995 addendum mapped the opinion to Rule 7.1 (communications concerning a lawyer's services), Rule 7.2 (advertising), and Rule 7.4 (fields of practice). The Colorado advertising and solicitation rules have been amended substantially since then. 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: Could a Colorado lawyer mail a legal-developments newsletter to existing clients?

A: Yes. The opinion concluded a lawyer may send a newsletter on current legal developments to existing clients so long as it contains no false, fraudulent, misleading, deceptive, or unfair statement and no self-laudatory statements or testimonials.

Q: Could the lawyer also send the newsletter to people who are not clients?

A: Yes, within the solicitation rules. The opinion concluded a lawyer may send a newsletter to non-clients even where pecuniary gain is a significant motive, provided the solicitation limits of DR 2-101 are observed, reasoning that a newsletter is far less invasive than in-person solicitation because the recipient can discard it.

Q: If the lawyer bought the newsletter from a third party, did that matter?

A: Yes. The opinion concluded it is unethical under DR 2-101 to send a newsletter prepared by someone other than the sending lawyer without clearly identifying the actual author, because letting recipients credit it to the sending lawyer is misleading.

Background and rules framework

The opinion interpreted the then-governing Colorado Code of Professional Responsibility, principally DR 2-101 (advertising and solicitation) and its definitions of "solicitation," together with EC 2-1 and the post-Bates First Amendment framework. The modern Model Rules analogs are Rule 7.1 (false or misleading communications about a lawyer's services), Rule 7.2 (advertising), and Rule 7.3 (solicitation and direct contact with prospective clients).

Citations and references

Rules of Professional Conduct:

• Colo. Code of Professional Responsibility DR 2-101 (advertising, solicitation, definitions); EC 2-1 (governing rules at issuance)
• Colo. RPC 7.1 / Model Rule 7.1 (false or misleading communications; current analog)
• Colo. RPC 7.2 / Model Rule 7.2 (advertising)
• Colo. RPC 7.3 / Model Rule 7.3 (solicitation of clients)

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977), constitutional protection for lawyer advertising
• Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), commercial-speech protection and required disclosures
• Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978), in-person solicitation may be prohibited
• In re Madsen, 68 Ill. 2d 472, 370 N.E.2d 199 (1977), discipline for a newsletter or "tip sheet" sent to clients

Other opinions cited:

• ABA Formal Op. 213 (1941): circulation of a law-news bulletin to a firm's regular clients
• CBA Formal Op. 42 (1968): withdrawn by this opinion

See also

• CBA Formal Op. 76: Lawyer Advertising Guidelines
• CBA Formal Op. 122: Internet-Based Lawyer Marketing
• ABA Formal Op. 501: Solicitation

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_74_2011.pdf