Can a lawyer run a newspaper ad telling people they may have been victims of a party's discrimination and inviting them to contact the firm?

Plain-English summary

During discovery, an attorney learned that the opposing party had engaged in discriminatory activities against Native Americans, but the judge ruled the issue irrelevant and she could not obtain the names of those affected. Because those persons did not know they had been discriminated against and the attorney did not know their names, she intended to run newspaper advertisements telling Native Americans who had certain business contacts with party X during a period that they might have a discrimination claim and could contact her firm. The committee was asked whether the ad would violate Rule 7.3, and answered no.

The committee quoted Montana's Rule 7.3, which bars contacting a prospective client for employment only where the lawyer knows or should know the person cannot exercise reasonable judgment, has asked not to be contacted, is being coerced or harassed, or is already represented. While the ad's purpose included obtaining employment, the committee found none of subsections (a) through (d) applied. It explained that the rule's policy is to protect lay persons from a lawyer's persuasion in one-on-one conversation, and the attorney intended only indirect, written contact. Citing Zauderer v. Office of Disciplinary Counsel, it noted the key distinction is between in-person solicitation and print advertising, which "poses much less risk" because it lacks the coercive force of a trained advocate's personal presence. Drawing on South Carolina Ethics Opinion 91-06, the committee added that newspaper advertising is permissible provided it does not create unjustified expectations and is not false or misleading, and found the proposed ad truthful and free of such expectations. It concluded the advertisement would comply with Montana Rule 7.3.

Currency note

This opinion was issued in 1995, before the State Bar of Montana's adoption of the 2004 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 Treat this page as historical context, not current guidance.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: Can a lawyer advertise to find people who may have a legal claim they do not know about?

A: The opinion concludes yes, where the communication is a truthful newspaper ad and none of Rule 7.3's prohibitions apply.

Q: Why is a newspaper ad treated differently from approaching people directly?

A: The opinion explains that print advertising lacks the coercive force of in-person solicitation, citing Zauderer, so it poses much less risk.

Q: What limits still apply to the ad?

A: The opinion requires that the ad not create unjustified expectations and not be false or misleading.

Background and rules framework

The opinion interprets Montana's permissive Rule 7.3 (direct contact with prospective clients; Model Rule 7.3) and Rule 7.1 (false or misleading communications; Model Rule 7.1), relying on Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), and South Carolina Ethics Opinion 91-06.

Citations and references

Rules of Professional Conduct:

• Mont. R. Prof. Cond. 7.3 (direct contact with prospective clients) / Model Rule 7.3
• Mont. R. Prof. Cond. 7.1 (false or misleading communications) / Model Rule 7.1

Cases:

• Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), First Amendment protection for print advertising

Other opinions cited:

• South Carolina Ethics Op. 91-06 (1991): newspaper advertising of legal services

See also

• State Bar of Montana Ethics Op. 941221: Targeted Mailings and Costs

Source

• Landing page: https://www.montanabar.org/For-Attorneys/State-Bar-Resources/Ethics-Opinions
• Original PDF: https://www.montanabar.org/Portals/MONTANA/951230.pdf

Original opinion text

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

FACTS: During discovery proceedings on behalf of her client, Attorney learned that the opposing party had been and is currently engaged in illegal discriminatory activities against Native Americans. The judge determined that this issue was irrelevant to the case, and Attorney was therefore unable to obtain records indicating the names of those persons who had been discriminated against by party X. Because these persons do not know that they have been discriminated against, and because Attorney does not know their names, Attorney intends to take out advertisements in local area newspapers stating that if any Native Americans have had business contacts with specific results with party X during a certain period of time, they may have a cause of action against party X for discrimination. Attorney also intends to include in her advertisement that these Native Americans may contact her law firm for possible representation.

QUESTION PRESENTED: Would Attorney's proposed advertisement, as described, violate Rule 7.3?

SHORT ANSWER: No.

DISCUSSION: The facts and question presented here involve Rule 7.3, Direct Contact with Prospective Clients. Montana's Rule 7.3 states, in full:

A lawyer shall not contact, or send a written communication to, a prospective client for the purpose of obtaining professional employment, if:

(a) the lawyer knows or reasonably should know that the physical, emotional, or mental state of the person is such that the person cannot exercise reasonable judgment in employing a lawyer;
(b) the person has made known to the lawyer a desire not to receive a communication from the lawyer;
(c) the lawyer reasonably should know that the communication involves coercion, duress, or harassment;
(d) the lawyer reasonably should know that the person is already represented by another lawyer.

While the facts supplied to us indicate that one of the purposes of Attorney's intended advertisement is to inform certain persons of their potential cause of action, it can also be inferred from these same facts that another purpose of this advertisement is to obtain professional employment. Therefore, if subsection (a), (b), (c), or (d) applies here, Attorney's advertisement would violate Montana Rule 7.3.

However, the facts indicate that subsections (a)-(d) do not apply here. In addition, Attorney's proposed advertisement is in conformance with the policy behind the Rule, which is to protect a lay person from a lawyer's honed skills of persuasion during a one-on-one conversation, and ensure that the lay person can exercise his or her own judgment in choosing a lawyer. Here, of course, Attorney intends only indirect, written contact with the potential clients. The significance of the distinction between direct, in-person, and indirect, written communication with potential clients was explained by the United States Supreme Court in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985). In Zauderer,

"the Supreme Court afforded First Amendment protection to newspaper advertising by a lawyer seeking to solicit product liability cases from women who had used the Dalkon Shield. The Court strongly suggested that the key distinction is between in-person solicitation and print advertising, rather than between general advertising and "targeted" communications. The Court [stated] in Zauderer that print advertising "poses much less risk ... it will lack the coercive force of the personal presence of a trained advocate."

Geoffrey C. Hazard, Jr. and W. William Hodes, The Law of Lawyering at 883 (vol. 2, 2d ed., 1994) (citing Zauderer, 471 U.S. at 642).

Another aspect of print advertising was discussed by the South Carolina Ethics Committee in its Opinion 91-06 (April 1991). In that opinion, the South Carolina Committee held that a lawyer could advertise his services in a local newspaper, "provided that the advertisements do not create unjustified expectations about results the lawyer can achieve for clients and the language of the advertisements is not false or misleading." Here, there is no indication that Attorney's proposed advertisement will create any unjustified expectations, while there is every indication that the contents of the advertisement will be truthful.

Thus, Attorney's proposed advertisement would comply with Montana Rule 7.3.

THIS OPINION IS ADVISORY ONLY