Can a law firm mail a legal-developments newsletter to non-clients, and does it have to disclose where its lawyers are licensed?

Plain-English summary

An out-of-state law firm prepared and mailed to clients and non-clients in Maine a newsletter that reported recent legislation, agency rulings, and court decisions, described courses of action readers might consider, named firm members to contact with questions, described the firm's recent seminars, and (with a disclaimer that it was not legal advice) invited readers to contact the firm. Bar Counsel asked, under Rule 11(c)(1), whether distributing it to non-clients violated any Maine Bar Rule.

The Commission concluded that, with one exception, it did not. Under Rule 3.9(a) (no false, fraudulent, misleading, or deceptive public communication), nothing in the facts suggested a violation: the articles were the firm's own, no explicit claims were made about competence to handle a particular problem, and the description of seminar participation was factual. The Commission found the newsletter was designed to solicit employment and so was subject to Rule 3.9(f), but it concluded the content and mail-only method involved no duress, intimidation, harassment, follow-up contact, unwarranted promises of benefit, or appreciable risk of undue influence or ill-considered action; a reader could simply discard it. The single violation was under Rule 3.9(e) (multi-jurisdictional disclosure): because the firm served clients in several states and the newsletter discussed several states' case law, it should have described the jurisdictional limitations of the lawyers whose names appeared. The Commission read Rule 3.9(e) to apply to any association offering legal services, not only technical partnerships, and noted it did not reach whether distribution by a firm not licensed in Maine would be unauthorized practice, a question outside its authority.

Currency note

This opinion was issued in 1988, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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 Treat this page as historical context, not current guidance.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: May a law firm mail a legal newsletter to people who are not its clients?

A: The opinion concluded yes; distributing the newsletter to non-clients did not violate the advertising or solicitation rules on these facts, subject to one disclosure requirement.

Q: Is a newsletter that invites readers to call the firm considered solicitation?

A: The opinion concluded it was designed to solicit employment and so was subject to Rule 3.9(f), but it found the mail-only, no-follow-up format involved no duress, undue influence, or improper promises.

Q: What did the firm have to add to the newsletter?

A: The opinion concluded Rule 3.9(e) required the newsletter to disclose the jurisdictional limitations of the named lawyers, because it discussed several states' law and the firm's lawyers were not all licensed everywhere it circulated.

Background and rules framework

The opinion interprets former Maine Bar Rule 3.9, which governed advertising and solicitation: subsection (a) (false or misleading public communications), subsection (f) (limits on solicitation), and subsection (e) (multi-jurisdictional disclosure of lawyers' jurisdictional limitations). These correspond to ABA Model Rules 7.1 (communications about services), 7.3 (solicitation), and 7.2/7.5 (advertising and firm-name disclosures). The opinion expressly did not decide an unauthorized-practice question under 4 M.R.S.A. section 807.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.1 (false or misleading communications); Model Rule 7.2 (advertising); Model Rule 7.3 (solicitation)
• Maine Bar Rule 3.9(a); Rule 3.9(e); Rule 3.9(f)

Statutes:

• 4 M.R.S.A. section 807 (unauthorized practice; referenced but not decided)

See also

• ABA Formal Op. 501: Solicitation Under Rule 7.3
• CA Bar Op. 1995-142: Direct-Mail Marketing to Arrestees

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=91470

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: April 7, 1988

Pursuant to Maine Bar Rule 11(c)(1), Bar Counsel has requested an advisory opinion from the Professional Ethics Commission with respect to the following facts.

A law firm in another state prepares and distributes to clients and non-clients in the State of Maine a newsletter which is apparently prepared by members of the law firm. The newsletter not only reports recent legislative enactments, regulatory agency rulings and court decisions, but also gives general descriptions of courses of action and alternatives its readers can consider when involved with a problem such as an unfriendly takeover bid of a corporation. In addition the newsletter suggests that its readers contact named members of the firm if they have further questions on a given news article. Finally, the newsletter devotes space describing recent seminars and educational activities that firm members have conducted or participated in. At the end of the publication is a statement that the newsletter does not constitute legal advice and suggests that readers consult with counsel to determine the applicability of any new development to their specific situation. It concludes with a final invitation to contact the firm for more information on any item discussed in the newsletter.

The question is whether the distribution of the newsletter to non-clients of the firm violates any provision of the Maine Bar Rules.

Opinion

The Commission concludes that with one exception the distribution of the newsletter to non-clients does not violate any Maine Bar Rule.[1]

Rule 3.9(a) prohibits "any form of public communication containing a false, fraudulent, misleading, or deceptive statement or claim." Nothing in the statement of facts suggests that the newsletter contains any statement or claim that would violate this Rule. All articles in the newsletter were prepared by the law firm distributing it. No explicit statements or claims are made about the firm's competence to handle any particular legal problem of a reader. The descriptions of the firms members participation in recent educational seminars is factual and does nothing more than to suggest that the firm attempts to keep up with new developments in the law-nothing unique to this law firm or particularly newsworthy, to be sure, but not likely to unduly influence the reader in their assessment of the firms legal abilities relative to its competition.

The next question is whether the newsletter is subject to the restrictions of Rule 3.9(f) relative to solicitation activities. While it might be argued that the newsletter is merely what it purports to be a publication intended simply to convey general information of a legal nature it is clear that it is designed to solicit employment for the firm. The admonition that the reader may need to take some action to comply with a change in a regulation, the identification of the individual authors of the articles, and the suggestion that these authors be contacted to discuss the matter more thoroughly, while perhaps subtle is nonetheless a form of solicitation that must stay within the bounds proscribed by Rule 3.9(f).

Neither the newsletters content nor its method of distribution suggests duress, intimidation, or vexatious or harassing conduct. The newsletter is simply sent through the mail and involves no follow up contact by the firm. The reader can simply throw it in the wastebasket without any fear of embarrassing consequences. While the newsletter does suggest that the firm can and will provide legal services for the reader relating to the matters discussed in the newsletter, that in and of itself does not constitute unwarranted suggestions or promises of benefits prohibited by the Rule. Nor can the Commission find in these circumstances an appreciable risk of undue influence by the firm or ill-considered action by the readers of the newsletter.

The Commission, however, concludes in one respect the newsletter as prepared would violate Rule 3.9(e).[2] Although the firm apparently has offices in only one state,[3] it appears to serve clients in several states and does not confine its newsletter to matters of federal or its home state law. Case law in several state jurisdictions is discussed and analyzed. The Commission concludes that under the circumstances the newsletter should describe the jurisdictional limitations of the lawyers whose names appear in the publication.

Footnotes

[1] The facts do not indicate if the lawyers in the firm are licensed to practice in Maine. Consequently, this opinion need not address the question of whether the distribution of such a newsletter to Maine citizens by a lawyer or law firm which is not licensed to practice law in the State of Maine constitutes the unauthorized practice of law under 4 Maine Revised Statutes Annotated § 807, a question which in any event this Commission has no authority to answer.

[2] Rule 3.9(e) is as follows: Multi-Jurisdictional Disclosure. A multi-jurisdictional partnership shall disclose, in all public communications containing the names of lawyers affiliated with it, jurisdictional limitations of those lawyers not licensed to practice in the jurisdiction in which the communication is published.

[3] The facts do not indicate whether the firm is a partnership, professional corporation or otherwise. The Commission does not construe Rule 3.9(e) to mean only those firms that are technically partnerships. The prohibition must have been intended to apply to any association offering legal services to the public no matter what form the association takes.