Could a Nebraska law firm mail advertising letters directly to prospective institutional debt-collection clients?

Plain-English summary

A multistate firm proposed mailing institutions of higher education a letter describing its nationwide student-loan collection capabilities and flexible fee arrangements.

Recent amendments to former DR 2-101 expanded permissible lawyer advertising beyond public media to written communications not involving personal contact.

The committee approved the proposed type of letter, subject to accuracy. It could not contain misrepresentations or create unjustified expectations about collection results.

Former DR 2-104(B) separately prohibited communications to people unable to exercise reasonable judgment, people who had opted out, or communications involving coercion, duress, or harassment.

The then-current rule also required conspicuous "This is an advertisement" wording on the envelope or postcard and one-year retention of the communication and distribution records.

Currency note

This opinion was issued in 1983, before Nebraska's adoption of the 2005 Rules of Professional Conduct. Subsequent direct-mail, solicitation, debt-collection, labeling, vulnerable-person, and recordkeeping rules or later opinions may have changed all operational requirements. Treat this page as historical context, not current guidance. The 2005 adoption date is stated in Nebraska Ethics Advisory Opinion 06-12.

Common questions

Q: Was a targeted letter treated as personal contact?

A: No under the opinion.

Q: Could the firm imply guaranteed collection results?

A: No. The communication could not create unjustified expectations.

Q: What had to appear on the envelope?

A: The former rule required conspicuous words stating, "This is an advertisement."

Q: Did the firm need to keep a copy?

A: Yes, along with when and where it was used, for one year under the former rule.

Background and rules framework

The opinion implemented newly expanded written-advertising permission while preserving truthfulness, recipient-protection, labeling, and recordkeeping safeguards.

Citations and references

Former Nebraska Code of Professional Responsibility:

• DR 2-101(A), (B), and (F), and DR 2-104(B)

See also

• Nebraska Ethics Op. 88-4: Targeted direct-mail solicitation
• Virginia Ethics Op. 508: Direct-mail solicitation and labels
• Alabama Ethics Op. 1996-05: Direct-mail advertising

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 83-2

Original opinion text

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

Nebraska Ethics Advisory Opinion for Lawyers No. 83-2

A LAWYER MAY ETHICALLY ADVERTISE BY MAILING OR
DELIVERING LETTERS DIRECTLY TO PROSPECTIVE
CLIENTS; PROVIDED, PERSONAL CONTACT IS NOT
INVOLVED, THE COMMUNICATION IS NOT FALSE OR
MISLEADING, AND ON THE FRONT OF EACH ENVELOPE
IN WHICH IT IS MAILED OR DELIVERED (OR ON THE
FRONT OF EACH POSTCARD, IF PRINTED ON A
POSTCARD) ARE PLACED THE WORDS: "THIS IS AN
ADVERTISEMENT."

QUESTION PRESENTED

A multistate law firm proposes to advertise by mailing
the following letter to lay persons at particular
institutions of higher education in Nebraska:

Dear _______:

From time to time you may experience some difficulty in your efforts to collect outstanding loans made to former students of your institution. This may be particularly true where the debtor is out-of-state or out of the territory where you have established legal representation. Many of the state student loan authorities, as well as the United States Department of Education, have already begun to use nationwide collection services as a means for collecting on outstanding loans and accounts. You may also have considered using private collection agencies to help you collect on these loans and this is the reason for this letter.

While we are not a collection agency as such, our firm has experienced in debt collection work. Moreover, we have offices located throughout the United States. Our experience and capabilities extend from letter-writing and telephone calls to the institution of legal action and post-judgment collection activity in the local courts where the debtor may reside. Moreover, we are willing and able to develop a program that fits the individual needs of the client and our fee arrangement is flexible.

Should your institution have need for collection services now or in the future, we would be happy to discuss our capabilities with you.

DISCUSSION

Until amendments recently were adopted, the Code of
Professional Responsibility adopted by the Supreme
Court of Nebraska (Code), confined lawyer advertising
to the use of the print media, radio and television. Now,
DR 2-101(B) provides:

(B) Subject to the requirements of DR 2- 101 (A) and DR 9-104 (B), a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, radio or television, or through written communication not involving personal contact. A copy of recording or an advertisement or written communication shall be kept for one year after its dissemination along with a record of when and where it was used. (Emphasis supplied).

And DR 2-101 (F) provides:

(F) On the front of each envelope in which an advertisement of a lawyer is mailed or delivered or on the front of each postcard, if the advertisement is printed on a postcard, shall be placed the words: "This is an advertisement". These words shall be printed in type size at least as large as the print of the address and shall be located in a conspicuous place on the envelope or card.

And, DR 2-104 (B) provides:

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

(1) The lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer;

(2) The person has made known to the lawyer a desire not to receive communications from the lawyer; or

(3) The communication involves coercion, duress or harassment.

Lastly, DR 2-101(A) provides, in part:

(A) A lawyer shall not make a false or misleading communication about the lawyer's services. A communication is false and misleading if it:

(2) Is likely to create an unjustified expectation about results the lawyer can achieve .

CONCLUSION

In the opinion of the Committee a direct mailing of a
letter similar to the one set out above is permitted by
the above quoted amendments to the Code, provided
the lawyer or law firm complies with the requirements of
DR 2-101(F), and the communication is neither false nor
misleading and is not likely to create an unjustified
expectation about results the lawyer or law firm can
achieve.

Nebraska Ethics Advisory Opinion for Lawyers No. 83-2