In New Jersey, what makes a law firm's direct-mail solicitation letter to people charged with municipal offenses cross from permissible advertising into an ethics violation?

Plain-English summary

Opinion 698 is a joint opinion (ACPE Opinion 698 and Committee on Attorney Advertising Opinion 34) reviewing several law-firm solicitation mailings sent to prospective clients, at the CAA's request, to identify ethical problems beyond those covered by the advertising rules in RPC 7.1 through 7.5.

The Committee finds that statements casting baseless aspersions on prosecutors and police are prejudicial to the administration of justice under RPC 8.4(d). One mailing told recipients that "the cops and prosecutors will not tell you everything you need to know," and described the town's revenue source as traffic tickets, with no factual basis offered. Relying on State v. Farrell and its own Opinion 661, the Committee restates that a prosecutor's primary duty is not to obtain convictions but to see that justice is done, and that RPC 3.8's responsibilities apply with equal force to traffic and quasi-criminal municipal matters. Sweeping statements suggesting prosecutors and police routinely violate those duties offend RPC 8.4(d).

The Committee also identifies misstatements of fact. Several mailings said the prosecutor's job is "to convict" or to "find you guilty"; the Committee holds this misstates the prosecutor's duty under RPC 3.8, offends RPC 8.4(d), and raises problems under CAA Opinion 29 (revised), RPC 7.1(c)(1), and RPC 8.4(c). A claim that the sender is a "former MUNICIPAL COURT JUDGE" is permissible only if the lawyer includes the years and location(s) of service, per CAA Opinion 22.

Finally, the Committee flags defects under the advertising rules and CAA Opinion 29 (revised): the absence of the required, prominently displayed word "Advertisement" violates RPC 7.3(b)(5)(i), and the mailings failed to disclose how the recipient's information was obtained. A brochure headed "Confidential Special Report" that is in fact an advertisement is misleading and violates RPC 7.1(a)(1) and RPC 8.4(c), and extreme, unsupported statements (for example, exaggerated warnings about the IRS, and an implication that a non-truth could resolve a tax problem) are misleading and contravene RPC 8.4(c) and (d). The Committee on Attorney Advertising joins in the opinion as to the conclusions concerning advertising violations.

In practice

The opinion holds that, under the New Jersey Rules as they stood at the time, a solicitation letter crosses from permissible advertising into a violation when it (1) makes baseless factual assertions that disparage prosecutors or police, which the Committee treats as prejudicial to the administration of justice under RPC 8.4(d); (2) misstates the prosecutor's role under RPC 3.8 (for example, that the prosecutor's job is to convict), which the Committee treats as both an RPC 8.4(d) problem and a misstatement of fact under RPC 7.1(c)(1) and RPC 8.4(c); (3) claims prior judicial service without stating the years and locations, contrary to CAA Opinion 22; (4) omits the prominently displayed word "Advertisement" required by RPC 7.3(b)(5)(i) or fails to disclose how the recipient's information was obtained; or (5) uses a misleading label such as "Confidential Special Report" on what is actually an advertisement, contrary to RPC 7.1(a)(1) and RPC 8.4(c). Because this opinion is more than five years old, and the New Jersey advertising rules and CAA guidance have been revised since, verify the current RPC 7.1 through 7.5 and current CAA opinions before relying on the specific provisions cited here.

Common questions

Q: Can a solicitation letter tell recipients that prosecutors and police are not on their side?

A: Not without a factual basis. The opinion holds that statements casting baseless aspersions on prosecutors and police, such as that they will not tell you what you need to know, are prejudicial to the administration of justice under RPC 8.4(d).

Q: Is it a violation to say the prosecutor's job is to convict you?

A: Yes, under this opinion. It holds that such statements misstate the prosecutor's duty under RPC 3.8, offend RPC 8.4(d), and are misstatements of fact under RPC 7.1(c)(1) and RPC 8.4(c).

Q: Can I describe myself in an ad as a former municipal court judge?

A: Per the opinion, that statement is permissible only if the attorney includes the years and location(s) of service, citing CAA Opinion 22.

Q: What basic requirements did these mailings miss?

A: The opinion notes the absence of the prominently displayed word "Advertisement" required by RPC 7.3(b)(5)(i) and the failure to disclose how the recipient's information was obtained, as required by CAA Opinion 29 (revised). It also holds that labeling an advertisement a "Confidential Special Report" is misleading under RPC 7.1(a)(1) and RPC 8.4(c).

Background and rules framework

The opinion interprets New Jersey's lawyer-advertising and misconduct rules: RPC 7.1 (communications concerning a lawyer's services, including 7.1(a)(1) and 7.1(c)(1)), RPC 7.3(b)(5)(i) (the required "Advertisement" labeling for solicitations), and RPC 8.4(c) and (d) (dishonesty/misrepresentation and conduct prejudicial to the administration of justice), read against RPC 3.8 (the special responsibilities of a prosecutor). It applies the Committee on Attorney Advertising's Opinion 29 (revised) and Opinion 22 to the specific mailings. The analysis turns on whether a statement has a factual basis and whether it accurately states the prosecutor's role and the advertising disclosures the rules require.

Citations and references

Rules of Professional Conduct:

• MR 7.1 / NJ RPC 7.1(a)(1), 7.1(c)(1) (communications concerning a lawyer's services)
• MR 7.3 / NJ RPC 7.3(b)(5)(i) (solicitation; required "Advertisement" labeling)
• MR 8.4 / NJ RPC 8.4(c), 8.4(d) (dishonesty/misrepresentation; conduct prejudicial to the administration of justice)
• MR 3.8 / NJ RPC 3.8 (special responsibilities of a prosecutor)

Cases:

• State v. Farrell, 61 N.J. 99 (1972) (a prosecutor's primary duty is to see that justice is done, not to obtain convictions)
• Beyer v. United States, 295 U.S. 78 (1935) (duty to refrain from improper methods calculated to produce a wrongful conviction)

Other opinions cited:

• Committee on Attorney Advertising Opinion 29 (revised), 175 N.J.L.J. 609 (Feb. 16, 2004): requirements for solicitation letters to municipal-court defendants
• Committee on Attorney Advertising Opinion 22, 148 N.J.L.J. 1338 (June 30, 1997): claims of prior judicial service must state the years and locations of service
• ACPE Opinion 661: a prosecutor's primary duty is to see that justice is done

See also

• ABA Formal Op. 501: Solicitation Under Model Rule 7.3
• ABA Formal Op. 465: "Deal of the Day" Marketing Programs
• NJ ACPE Op. 699: Collaborative Law

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2005/acp698-1.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. Minor spacing artifacts from the mirror's text extraction have been normalized; the linked official source controls.

182 N.J.L.J. 612

November 7, 2005

14 N.J.L. 2240

November 7, 2005

Advisory Committee on Professional Ethics

Committee on Attorney Advertising

Appointed by the Supreme Court of New Jersey

JOINT OPINION

Opinion 698

Advisory Committee on Professional Ethics

Opinion 34

Committee on Attorney Advertising

Direct Mail Solicitation Letters and Conduct that is Prejudicial to the Administration of Justice

At the request of the Committee on Attorney Advertisement (CAA), we have reviewed several solicitation mailings which are in essence advertisements from law firms to prospective clients. The CAA has asked our views about whether there are ethical issues raised by these letters beyond those addressed in advertising rules. All advertisements and unsolicited mailings seeking to attract clientele are subject to various RPC's and opinions of the CAA and this Committee, notably CAA Opinion 29 (revised) (175 N.J.L.J. 609, 13 N.J.L. 310, February 16, 2004). In this opinion we examine solicitation letters for defects beyond those covered by the advertising rules, RPC 7.1 through 7.5.

One mailing makes the following statements: We know that the cops and prosecutors will not tell you everything you need to know to protect your rights and so you can avoid being taken advantage of by police and prosecutors and perhaps they listened to the police officer who told them all they needed to do was show up in court and everything 'would be ok'. There is an entire paragraph describing the local town's revenue source as being traffic tickets. There is no evidence of any factual basis for such statements. Absent such a basis, we find that such references cast baseless aspersions upon, and are prejudicial to, the administration of justice within the meaning of RPC 8.4(d). In accordance with RPC 3.8, a prosecutor has a duty to refrain from prosecuting a charge he or she knows is unsupported and to make timely disclosure of all evidence that supports innocence. Although these responsibilities pertain specifically to criminal cases, this committee believes these responsibilities apply with equal force to the prosecution of a traffic offense, quasi-criminal matter, or any other municipal court proceeding. As was relied upon in our Opinion 661, The primary duty of a prosecutor is not to obtain convictions, but to see that justice is done, State v. Farrell, 61 N.J. 99, 104 (1972). Thus, [I]t is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one. Id. at 105 (quoting Beyer v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935)).

The statements in these letters as to what prosecutors and cops do suggest that prosecutors, and law enforcement officials as their agents, regularly violate RPC 3.8, and their responsibility to the public. Such sweeping statements offend RPC 8.4(d). Furthermore, the reviewed solicitation offends Opinion 29 (revised) of the Committee on Attorney Advertising, which states:

In the future, attorney's who send solicitation letters seeking to obtain clients from among those persons charged with municipal court violations must:

5. Not attempt to indicate a special relationship or knowledge which will or may provide a more favorable result other than licensed New Jersey attorneys.

6. Not raise unjustified expectations or use language which is susceptible of unduly pressuring a person because of possible consequences or potential penalties unrelated to specific offense charged.

7. Not misstate the role of the prosecutor or municipal court judge, or their functions in the justice system.

Similarly, several mailings contain statements that the job of the prosecutor is to convict. This offends RPC 8.4(d) in that it misstates the duty of a prosecutor pursuant to RPC 3.8. In the same vein, one mailing includes the statement You should be aware that the State of New Jersey is represented by a Prosecutor and their job is to find you guilty. In addition to the 8.4(d) violation, this is a misstatement of fact which raises problems under CAA Opinion 29 (revised) and RPC 7.1(c)(1), as well as RPC 8.4(c). The mailing also states that the sender is a former MUNICIPAL COURT JUDGE. The CAA has found such a statement to be permissible only if the attorney includes the years and location(s) of service in the advertisement. CAA 22 (148 N.J.L.J. 1338 and 6 N.J.L. 1635, June 30, 1997)

Other direct mail advertising letters brought to our attention fail to adhere to the rules and to explicit directions contained in CAA Opinion 29 (revised). Notable deficiencies include the absence of the required word Advertisement, prominently displayed, violating RPC 7.3(b)(5)(i), and failing to disclose how the potential clients' information was obtained, also required by CAA Opinion 29.

Other problems also are presented. In one example, a brochure is headed Confidential Special Report. In fact, the brochure is an advertisement; there is nothing confidential or special about it. Such words are misleading and in violation of RPC 7.1(a)(1) and RPC 8.4(c). The body of the advertisement contains extreme statements such as You will always be looking over your shoulder for the IRS! This usually means you have to work until you die! ; For taxpayers who don't file an Offer In Compromise - They request the IRS to ... Abate the IRS penalties for Reasonable Cause. This can be as simple as explaining to the IRS that your basement flooded (emphasis supplied). The implication is that a non-truth may get a person out of difficulty with an administrative agency, contravening 8.4(d). Similarly, statements such as Then the IRS pulls out all of the stops. They simply seize your assets and sell them at an auction! are misleading, in the extremity of their representations, without a basis in fact, in violation of RPC 8.4(c) and (d).

The Committee on Advertising joins in this opinion as to the conclusions concerning advertising violations.