Can a law firm send newsletters to companies and individuals who are not current clients?
Ohio BPC Opinion 88-022: Sending Law Firm Newsletters to Non-Clients
Short answer: The Board concluded that a law firm may send newsletters to non-clients, provided the newsletters contain no false, fraudulent, misleading, or deceptive statements or claims, because newsletters are a form of advertising.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Currency note
The Ohio Board of Professional Conduct flags this opinion as not current, because DR 2-101 was amended after it issued (effective January 1, 1993 and August 16, 1993; see Opinion 92-20). It was issued in 1988 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct (including Ohio Prof. Cond. R. 7.1 through 7.3 on advertising and solicitation) before relying on any specific rule mentioned here.
Plain-English summary
A law firm asked whether it could send a newsletter to companies or individuals who were not currently its clients. The Board had previously approved newsletters to established clients on general points of law in Opinion 88-001, and was now asked to extend that to non-clients.
The Board concluded that newsletters, for purposes of the Code, are a form of advertising and so, like all lawyer advertising, may not contain false, fraudulent, misleading, or deceptive statements or claims (DR 2-101(A)). It quoted DR 2-101(C)'s definition of a false or misleading communication: one that contains a material misrepresentation or omits a necessary fact, is likely to create an unjustified expectation about results, or is subjectively self-laudatory or improperly comparative. The Board reasoned that a firm's justification for sending newsletters to non-clients was supported by the recent U.S. Supreme Court decision in Shapero v. Kentucky Bar Association, which held a state may not prohibit truthful, non-deceptive direct-mail solicitation of potential clients known to face particular legal problems; if targeted direct mail is permitted, sending newsletters to non-clients certainly is.
Common questions
Q: Can a law firm send newsletters to people who are not clients?
A: Yes. The Board concluded a firm may send newsletters to non-clients as long as they contain no false, fraudulent, misleading, or deceptive statements or claims.
Q: Why did the Board treat newsletters as advertising?
A: The Board stated that newsletters, for purposes of complying with the Code, are a form of advertising, so they are subject to the same DR 2-101 prohibition on false or misleading communications as other lawyer advertising.
Q: How did the Shapero decision factor in?
A: The Board reasoned that because Shapero v. Kentucky Bar Association allowed truthful, non-deceptive targeted direct mail to potential clients, sending newsletters to non-clients was permissible as well.
Background and rules framework
The opinion applies former DR 2-101(A) and DR 2-101(C) of the Ohio Code of Professional Responsibility (false or misleading communications), read against the U.S. Supreme Court's decision in Shapero. The current parallels on advertising and solicitation are Ohio Prof. Cond. R. 7.1, 7.2, and 7.3, with Model Rules 7.1, 7.2, and 7.3.
Citations and references
Rules of Professional Conduct:
- Former DR 2-101(A), Ohio Code of Professional Responsibility
- Former DR 2-101(C), Ohio Code of Professional Responsibility
Cases:
- Shapero v. Kentucky Bar Association, No. 87-16 (U.S. June 13, 1988), truthful direct-mail solicitation of potential clients
Other opinions cited:
- Ohio BPC Opinion 88-001 (1988): newsletters to established clients on general points of law
See also
- Ohio BPC Opinion 1988-001: Law Firm Newsletters to Clients
- Ohio BPC Opinion 1988-003: Direct-Mail Solicitation by a Legal Aid Lawyer
- Ohio BPC Opinion 1988-009: Soliciting Client Referrals From Non-Bar Organizations
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-88-022.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 88-022
Issued August 12, 1988
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
[Not current-subsequent rule amendments to DR 2-101, eff. Jan. 1, 1993 and Aug. 16, 1993. See Op. 92-20.]
SYLLABUS: A lawyer or law firm may ethically send newsletters to non-clients provided that the newsletters do not contain any false, fraudulent, misleading or deceptive statements or claims.
OPINION: We have before us your request for an advisory opinion on whether it is permissible for your law firm to send a newsletter to companies or individuals who are not currently clients of your firm.
In our Opinion 88-001 we stated that law firms could send out newsletters to established clients on general points of law as long as the newsletters did not contain false, fraudulent, misleading or deceptive statements or claims. Now we are being asked to extend that proposition to allow law firms to send newsletters to non-clients.
Newsletters, for purposes of complying with the Code of Professional Responsibility, are a form of advertising. Therefore, newsletters, like all forms of lawyer advertising, may not contain any false, fraudulent, misleading or deceptive statements or claims. Code of Professional Responsibility, DR 2-101(A). What constitutes a false or misleading communication is set forth in DR 2-101(C) which states:
[a] communication is false or misleading if it: (1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; (2) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Code of Professional Responsibility or other law; or (3) is subjectively self-laudatory, or compares a lawyer's services with other lawyers' services, unless the comparison can be factually substantiated.
A lawyer's justification in sending newsletters to non-clients is supported by a recent United States Supreme Court decision which held that a state may not prohibit lawyers from soliciting business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems. Shapero v. Kentucky Bar Association, No. 87-16 (June 13, 1988). If a lawyer may send targeted direct mail solicitations to persons known to need legal services, then certainly sending newsletters to non-clients is permitted.
In conclusion, it is our opinion and you are so advised that a law firm may ethically send out newsletters to non-clients provided they do not contain any false, fraudulent, misleading or deceptive statements or claims.
This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.
James W. Mason, Esq.
Secretary, Board of Commissioners