Can a lawyer send targeted mail soliciting people known to need legal help, such as accident victims named in news reports?

Plain-English summary

A lawyer asked whether he could mail solicitation pieces to individuals identified from news reports, such as people involved in automobile accidents. The committee concluded that a lawyer may initiate contact by mail with prospective clients known to be so situated as to be likely to need legal services, but must label both the envelope and the letter as advertising material and observe all rules relevant to lawyer advertisements, citing ISBA Opinion 90-22.

The committee traced the constitutional background. Bates v. State Bar of Arizona established First Amendment protection for lawyer advertising as commercial speech, restrictable only to vindicate a substantial state interest. The original ABA Model Rule 7.3 had barred solicitation except for letters or circulars sent to persons "not known to need legal services," but in Shapero v. Kentucky Bar Association the Supreme Court struck that limitation, holding the First Amendment does not permit banning a letter merely because mailing it only to those most interested is more efficient, and that there is no constitutional distinction between letters and circulars. Model Rule 7.3 and Illinois Rule 7.3(a)(2) were amended accordingly to drop the "not known to need legal services" reference.

The committee concluded that a lawyer who learns from the public media the name of a person who might need legal help, whether an accident victim, a criminally accused person, or anyone else, may address a written solicitation to that person, taking particular care to label the envelope and writing plainly as advertising material, to observe the restrictions in Rule 7.3(b), and to ensure the statements are not misleading.

Currency note

This opinion was issued in 1991, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rule 7.3(c) and its Comment [7], while cautioning that the specific standards referenced may differ from the 2010 Rules. 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Common questions

Q: Can a lawyer mail solicitation letters to people known to need legal services, like named accident victims?

A: The opinion concluded a lawyer may do so, provided the envelope and the letter are plainly labeled as advertising material and the lawyer follows the rules governing lawyer advertising.

Q: Does it matter that the recipients are specifically targeted rather than a general mailing?

A: The opinion concluded it does not. Following Shapero, it noted there is no constitutional distinction between letters and circulars, and a personalized letter may go to any target an impersonal circular could.

Q: What must the lawyer do to keep the mailing proper?

A: The opinion concluded the lawyer must plainly label the envelope and writing as advertising material, observe the restrictions in Rule 7.3(b), and ensure the statements are not misleading.

Background and rules framework

The opinion applied Illinois Rule 7.3(a)(2) (permitting solicitation by labeled letters and circulars) and Rule 7.3(b) (restrictions on such communications), read against Rule 7.1 (communications about a lawyer's services) and the First Amendment line from Bates through Shapero that reshaped Model Rule 7.3 (Model Rules 7.1, 7.3).

Citations and references

Rules of Professional Conduct:

• Model Rule 7.3 (solicitation of clients) / Illinois Rule 7.3(a)(2), 7.3(b)
• Model Rule 7.1 (communications concerning a lawyer's services)

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977)
• Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988)
• Peel v. Attorney Registration and Disciplinary Comm'n of Illinois, 496 U.S. 91 (1990)
• In re R.M.J., 455 U.S. 191 (1982)

Other opinions cited:

• ISBA Opinion 90-22: requirements for labeling direct solicitations.

See also

• ISBA Ethics Op. 92-17: Direct-Mail Solicitations
• ISBA Ethics Op. 12-04: Labeling Direct Solicitations as Advertising
• ISBA Ethics Op. 93-10: In-Person Solicitation of Employment

Source

• Landing page: https://www.isba.org/ethics/opinions/9037