After Bates, can a New Jersey lawyer send letters advertising legal services to businesses and the public with whom the lawyer has no prior relationship?

Plain-English summary

The inquirer asked about the appropriateness of various forms of lawyer advertising after Bates v. State Bar of Arizona, 433 U.S. 350 (1977). The Committee recounted that Bates upheld a First Amendment right to advertise legal services while allowing reasonable time, place, and manner restrictions and restraint of false, deceptive, or misleading advertising, and it reviewed Virginia Pharmacy Board v. Virginia Consumer Council, Ohralik v. Ohio State Bar Association, and In re Primus. From Ohralik it drew that the State retains a legitimate interest in protecting the public from solicitation involving fraud, undue influence, intimidation, overreaching, and other vexatious conduct, while truthful, restrained advertising of routine-service prices is protected.

Several forms of solicitation were presented: sample letters from lawyers to realtors, industrial concerns, and corporations offering services and stating charges; a printed publication setting forth a lawyer's billing practices, education, and bar memberships; and an advertisement in a supermarket coupon book listing a lawyer's name, address, and fees among merchandise discounts.

The Committee observed that the parameters of permissible advertising had not yet been established except in general terms, quoting Justice Marshall's concurrence in Ohralik and the Department of Justice's suggestion that the rules permit all solicitation and advertising except what is false, misleading, undignified, and champertous. It concluded that simple letters by attorneys advertising the availability of their services, addressed generally to a segment of the population with which the lawyers have no personal acquaintance, are not proscribed where they are not false, misleading, undignified, or champertous, citing Opinion 457.

Currency note

This opinion was issued in 1981, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. The advertising and solicitation rules it applied (DR 2-101 et seq.) now correspond broadly to RPC 7.1, RPC 7.2, and RPC 7.3, and the law in this area developed substantially after 1981. Treat this page as historical context, not current guidance.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: Could a lawyer mail general advertising letters to businesses and the public?

A: Yes. The opinion concluded that simple letters advertising availability of services to a segment of the public the lawyer does not personally know are not proscribed if not false, misleading, undignified, or champertous.

Q: What standard did the opinion apply?

A: Drawing on Bates and Ohralik, it allowed truthful, restrained advertising while leaving the State free to regulate solicitation involving fraud, undue influence, intimidation, or overreaching.

Background and rules framework

The opinion applied DR 2-101 and the related advertising and solicitation rules, read against the post-Bates First Amendment commercial-speech cases. In current New Jersey terms the analysis maps onto RPC 7.1 (communications about a lawyer's services), RPC 7.2 (advertising), and RPC 7.3 (solicitation). The line the Committee drew was between permissible general advertising and impermissible solicitation marked by fraud or overreaching.

Citations and references

Rules of Professional Conduct:

• MR 7.1 / NJ RPC 7.1 (communications about a lawyer's services); decided under former DR 2-101
• MR 7.2 / NJ RPC 7.2 (advertising)
• MR 7.3 / NJ RPC 7.3 (solicitation)

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977)
• Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 778 (1976)
• Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978)
• In re Primus, 436 U.S. 412 (1978)
• Kentucky Bar Association v. Stuart, 568 S.W.2d 933 (Ky. 1978)

Other opinions cited:

• NJ ACPE Opinion 457, 106 N.J.L.J. 98 (1980)

See also

• NJ ACPE Op. 488: Furnishing Fee Information to a Group Legal-Services Plan
• NJ ACPE Op. 482: Advertising Borrowed Expertise on Assistance Programs
• NJ ACPE Op. 480: Lawyer Participation in Media Call-In Programs

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp468-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

107 N.J.L.J. 10, January 1, 1981

OPINION 468

Advertising - In Various Forms

The inquirer poses questions of appropriateness of various forms of advertising by lawyers since the decision of the U.S. Supreme Court in Bates v. State Bar Association of Arizona, 433 U.S. 350, 53 L. Ed.2d 810 (1977). While the Court there upheld the First Amendment right of lawyers to advertise their services, it went on to declare that such advertising must not be false, deceptive or misleading and if it is, it may be restrained. It said at page 836: ..."as with other varieties of speech, it follows as well that there may be reasonable restrictions on the time, place and manner of advertising." (Emphasis added) See Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 778, 48 L. Ed.2d 346 (1976).

A more recent discussion of the subject is found in Ohralik v. Ohio State Bar Association, 436 U.S. 447, 56 L. Ed.2d 444 (1978). In Ohralik, the question was one of direct solicitation rather than by mail. At page 456 of Ohralik, the Court referred to the fact that truthful restrained advertising of the prices of "routine" legal services would not have an adverse effect on the professionalism of lawyers. It is clear, therefore, that the courts of the respective states which control the conduct of lawyers were not stripped of their authority reasonably to regulate advertising. See, also, In re Primus, 436 U.S. 412, 56 L. Ed.2d 417 (1978), and Kentucky Bar Association v. Stuart, 568 S.W.2d 933 (Ky. Sup. Ct. 1978).

The question of solicitation in person or by mail or other media is subject to regulation but such regulation must be reasonable. As was stated in Ohralik, the State has a legitimate and important interest in protecting the public from those aspects of an attorney's soliciting of clients that involve fraud, undue influence, intimidation, overreaching and other forms of vexatious conduct.

In this inquiry, several forms of solicitation are brought to our attention. One is a sample of several different letters directed by lawyers to realtors, industrial concerns and other corporations stating that they are interested in serving them, listing the services to be performed and the charges to be made. Another is a printed publication by a lawyer setting forth his billing charges, how he bills, his educational background and his bar association memberships. There is also an advertisement by a lawyer in a supermarket coupon book, distributed at the supermarket, in which his name appears on a page where all the other ads are for merchandise discounts. The lawyer has his name, address and lists his fees for various legal services.

The idea of soliciting clients through advertising was for years denounced by bar associations as being unprofessional, unethical and detrimental to the best interests of the profession. In Bates, however, as we have noted above, some reasonable forms of solicitation by advertising are permitted. Parameters of permissible advertising have not yet been established except in general terms as set forth in the various decisions of the Supreme Court. In Mr. Justice Marshall's concurring opinion in Ohralik, he stated, at page 466: By discussing the origin and impact of the nonsolicitation rules, I do not mean to belittle those obviously substantial interests that the State has in regulating attorney to protect the public from fraud, deceit, misrepresentation, overreaching, undue influence and invasions of privacy. But where honest, unpressed 'commercial' solicitation is involved - a situation not presented in either of these cases - I believe it is open to doubt whether the State's interests are sufficiently compelling to warrant the restriction on the free flow of information which results from a sweeping nonsolicitation rule and against which the First Amendment ordinarily protects.

The opinion pointed out that the Department of Justice had suggested that the disciplinary rules be reworded "so as to permit all solicitations and advertising except the kinds that are false, misleading, undignified and champertous."

We do not believe that simple letters by attorneys advertising the availability of their services addressed generally to a segment of the population with which the lawyers have no personal acquaintance are now proscribed where they are not false, misleading, undignified or champertous to use the words of the Department of Justice. See Opinion 457, 106 N.J.L.J. 98 (1980).