Can a lawyer offer free promotional merchandise to accident victims who call in response to a targeted direct mail letter?

Plain-English summary

A lawyer sends targeted direct mail letters to accident victims and wants to offer free promotional merchandise (a calculator, key chain, pen, mug, or similar item bearing the firm's name) to anyone who calls the office in response, sending the item whether or not the caller becomes a client. The question is whether the offer is permissible.

The opinion concludes no. It first notes that, as a general matter, putting a lawyer's or firm's name and contact information on merchandise such as t-shirts, mugs, pens, magnets, and golf balls does not violate the Rules; those items are just another advertising medium, like the yellow pages or a billboard (Rule 7.2(a)). But promising promotional merchandise as an inducement to call is an improper solicitation. A recipient may call only to get the item, with no intent to form a lawyer-client relationship, and because the recipient initiated the call, the lawyer could then solicit that person directly by phone. Rule 7.3(a) prohibits lawyer-initiated live telephone solicitation of a prospective client because of the potential for abuse in live telephone contact with a person known to need legal services.

Quoting Rule 7.3, comment [1], the opinion explains that a prospective client who already feels overwhelmed may find it hard to evaluate alternatives with reasoned judgment in the face of the lawyer's insistence on being retained, a situation open to undue influence, intimidation, and overreaching. The opinion therefore concludes the lawyer may not promise to send promotional merchandise to callers in a targeted direct mail solicitation letter, while adding that a lawyer may include promotional merchandise of minimal value (such as magnets and pens) in the direct mail letter itself.

In practice

Under the North Carolina rules as they stood at the time of the opinion, the analysis turns on whether the offer creates an opening for a prohibited live telephone solicitation. The opinion holds that a merchandise-for-a-call offer is improper because it lures recipients into calling, after which the lawyer could solicit them directly in a phone contact barred by Rule 7.3(a).

Per the opinion, branded merchandise is otherwise a permissible advertising medium under Rule 7.2(a), and a lawyer may enclose items of minimal value in a targeted direct mail letter; the line the opinion draws is at using the merchandise as bait to generate inbound calls.

Common questions

Q: Can a lawyer offer free merchandise to people who call after a direct mail letter?

A: No. The opinion concludes that promising promotional merchandise as an inducement to call is an improper solicitation, because it can prompt a call that lets the lawyer engage in a live telephone solicitation barred by Rule 7.3(a).

Q: Is it improper to put the firm's name on mugs, pens, or t-shirts at all?

A: No. The opinion concludes branded merchandise is just another advertising medium, like the yellow pages or a billboard, and does not by itself violate the Rules (Rule 7.2(a)).

Q: Why is the inducement-to-call the problem?

A: Because the recipient may call only for the item, and once the recipient initiates the call the lawyer could solicit them directly by phone, which Rule 7.3(a) prohibits given the potential for abuse in live telephone contact with someone known to need legal services.

Q: Can the lawyer include any merchandise in the mailing itself?

A: Yes. The opinion concludes a lawyer may include promotional merchandise of minimal value, such as magnets and pens, in targeted direct mail letters.

Background and rules framework

The opinion interprets Rule 7.2(a) (permissible advertising media, corresponding to Model Rule 7.2) and Rule 7.3(a) and its comment [1] (the bar on lawyer-initiated live telephone solicitation and its rationale, corresponding to Model Rule 7.3), applied to an offer of promotional merchandise tied to a targeted direct mail letter.

Citations and references

Rules of Professional Conduct:

• MR 7.2 / NC Rule 7.2(a) (advertising media)
• MR 7.3 / NC Rule 7.3(a) (no lawyer-initiated live telephone solicitation), cmt. [1]

See also

• NC State Bar 2015 FEO 3: Offering a Prospective Client a Computer Tablet in a Direct Mail Solicitation
• NC State Bar 2007 FEO 15: Clarification of the Requirements for Targeted Direct Mail
• NC State Bar 2006 FEO 6: Extraneous Statements on the Envelope of a Solicitation Letter
• ABA Formal Op. 501: Solicitation

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2004-formal-ethics-opinion-2/

Original opinion text

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

Inquiry:

Attorney sends out targeted direct mail letters to accident victims. He would like to include in his letter an offer to send the recipient free promotional merchandise, such as a calculator, key chain, pen, coffee mug or similar object, if they call his office in response to the direct mailing. The promotional item would contain the firm's name and address and would be sent to the caller irrespective of whether the caller is accepted as a client.

May Attorney include an offer for promotional merchandise to callers in his targeted direct mail advertisements?

Opinion:

No. As a general proposition, it is not a violation of the Rules of Professional Conduct to include the name of a lawyer or law firm and contact information on merchandise such as t-shirts, mugs, pens, magnets, golf balls, etc. These objects do not solicit legal business themselves, but instead are just another type of media through which attorneys may advertise, like the yellow pages or a billboard. Rule 7.2(a).

A promise of promotional merchandise as an inducement to call the lawyer or law firm, however, is an improper solicitation. The recipient of the letter may call the lawyer for the purpose of receiving the promotional item, having no intent to initiate a lawyer- client relationship. But because the recipient initiated the call to the lawyer, the lawyer may then solicit that person directly over the telephone. Rule 7.3(a) prohibits lawyer-initiated live telephone solicitation of a prospective client because of the potential for abuse inherent in live telephone contact by a lawyer with a person known to be in need of legal services.

The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer's presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and overreaching.

Rule 7.3, cmt. [1]. Therefore, Attorney may not promise to send promotional merchandise to callers in a targeted direct mail solicitation letter. Nevertheless, an attorney may include promotional merchandise of minimal value (i.e., magnets and pens) in targeted direct mail letters.