Can an Ohio lawyer send targeted direct mail letters soliciting people known to need legal services, such as those charged with a crime?
Ohio BPC Opinion 90-021: Whether a Lawyer May Use Targeted Direct Mail to Solicit Clients After Shapero
Short answer: The Board concluded that a lawyer may use a targeted direct mail campaign to solicit clients known to need legal services, provided the letters are truthful and not deceptive.
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.
Plain-English summary
The Board addressed whether a lawyer could solicit potential clients for representation in criminal matters by sending letters offering to represent them. It relied on Shapero v. Kentucky Bar Association, in which the U.S. Supreme Court held that a state may not categorically prohibit lawyers from soliciting business for pecuniary gain by sending truthful, nondeceptive letters to potential clients known to face particular legal problems, reasoning that a letter's recipient is not faced with the coercive presence of a trained advocate and can set the letter aside, while the written record helps regulate potential abuses.
The Board concluded that, in light of Shapero, DR 2-101(B) permits a direct mail campaign as printed material distributed to potential clients who need to be informed of available legal services. It cautioned that a lawyer who solicits this way may make no false, fraudulent, misleading, or deceptive statement under DR 2-101(A), and may not claim or imply special competence through terms like "specializes" except in patent, trademark, or admiralty law under DR 2-105(A), reading those restrictions in light of Peel v. Attorney Registration and Disciplinary Commission of Illinois. It noted that the ABA amended Model Rule 7.3 after Shapero to bar solicitation where the prospective client has made known a desire not to be solicited or where the contact involves coercion, duress, or harassment, and that, although Ohio did not adopt the Model Rule, it provides precautionary guidance, as do other states' requirements to mark "Advertising Material" and file the materials.
The Board distinguished its earlier opinions: in Op. 90-2 it had prohibited telemarketing as an intrusive form of solicitation creating undue pressure for an immediate answer, while in Op. 88-27 it permitted advertising in the Talking Yellow Pages following the relaxation of advertising rules after Shapero. The Board concluded that a lawyer or firm may advertise services by mail to specific clients who may need an attorney, provided the advertisement contains no false, fraudulent, misleading, or deceptive statements; it added that those charged with a crime may be more vulnerable to suggestion, so an attorney should be careful not to frighten or misinform them, misrepresent the government's burden of proof, or interfere with an existing or ongoing attorney-client relationship.
Currency note
The Board flags this opinion as not current in light of subsequent rule amendments to DR 2-101 effective January 1, 1993, August 16, 1993, and January 1, 2000. It issued in 1990 under Ohio's former Code of Professional Responsibility (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 before relying on any specific rule mentioned here.
Common questions
Q: Can an Ohio lawyer send targeted solicitation letters to people known to need legal help?
A: Under this opinion, yes. The Board concluded that, after Shapero, DR 2-101(B) permits a targeted direct mail campaign so long as the letters are truthful and not deceptive.
Q: What may the letters not contain?
A: The Board concluded the letters may make no false, fraudulent, misleading, or deceptive statement under DR 2-101(A), and may not claim or imply special competence except in patent, trademark, or admiralty law under DR 2-105(A).
Q: Why is direct mail treated differently from telemarketing?
A: The Board distinguished its Op. 90-2, which barred telemarketing as an intrusive form of solicitation pressing for an immediate answer, whereas a letter can be set aside, ignored, or discarded and leaves a written record.
Q: Are there extra cautions when soliciting people charged with a crime?
A: The Board noted such persons may be more vulnerable to suggestion, so an attorney should not frighten or misinform them, misrepresent the government's burden of proof, or interfere with an existing attorney-client relationship.
Background and rules framework
The opinion interprets the former Code of Professional Responsibility: DR 2-101(A), (B), and (C) (advertising and false or misleading communication), DR 2-105(A) (claims of special competence), and DR 2-103(E) (accepting employment from one's own advertising), all read against the First Amendment commercial-speech holdings in Shapero and Peel.
Citations and references
Rules of Professional Responsibility (Ohio, former):
- DR 2-101(A), (B), (C), advertising and false or misleading communication
- DR 2-105(A), claims of special competence or specialization
- DR 2-103(E), employment from one's own advertising
Cases:
- Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988), targeted direct mail solicitation protected
- Peel v. Attorney Registration and Disciplinary Commission of Illinois, 107 L.Ed.2d 182, 110 S.Ct. 731 (1990), claims of certification or specialization
Other rules referenced:
- ABA Model Rule 7.3 (not adopted in Ohio), precautionary guidance on direct solicitation
Other opinions cited:
- Board of Commissioners Op. 90-2: telemarketing prohibited
- Board of Commissioners Op. 88-27: advertising in the Talking Yellow Pages permitted
See also
- Ohio BPC Op. 1990-002: Telemarketing Solicitation of Clients
- Ohio BPC Op. 1990-011: Legal Aid Lawyer's In-Person Offer to an Indigent Defendant
- Ohio BPC Op. 1989-030: Group Legal Television Advertising
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-90-021.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 90-21
October 12, 1990
[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, Jan. 1, 2000.]
SYLLABUS: A lawyer or law firm may ethically use a targeted direct mail campaign to solicit legal business by sending truthful and nondeceptive letters to potential clients known to need legal services.
OPINION: We have before us your request for an advisory opinion regarding the propriety of a lawyer soliciting potential clients for representation in criminal matters. According to your request you intend to send out a letter offering to represent these potential clients.
The United States Supreme Court in Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988), made it clear that a state may not, consistent with the First and Fourteenth Amendments, categorically prohibit lawyers from soliciting legal business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems.
Shapero further stated that the recipient of such advertising is not faced with the coercive presence of a trained advocate or the pressure for an immediate yes-or-no answer to the representation offer, but can simply put the letter aside to be considered later, ignored, or discarded. Id. at 475. The Shapero court rejected Kentucky's arguments of abuse by overreaching and undue influence and found that targeted direct mail solicitation provides a written record of the communication that can regulate such potential abuses. Id. at 476.
In light of the Shapero case, DR 2-101 (B) does permit a direct mail campaign. It constitutes printed material distributed to potential clients who need to be informed of available legal services. However, if an attorney chooses to solicit in this fashion there can be no false, fraudulent, misleading, or deceptive statement or claim made. Code of Professional Responsibility, DR 2-101 (A). Also, the lawyer may not claim or imply special competence or experience in a field of law through use of the terms "specializes" or otherwise unless he works in the areas of Patent, Trademark or Admiralty law. Code of Professional Responsibility. DR 2-105 (A). These restrictions should be read in light of the U.S. Supreme Court's decision in Peel v. Attorney Registration and Disciplinary Commission of Illinois, 107 LE2d 182, 110 S Ct 731 (1990).
The ABA after Shapero amended Model Rule 7.3 to protect the potential client. Its provisions prohibit a lawyer from soliciting a prospective client by written or telephone contact if the client has made known to the lawyer a desire not to be solicited or if the solicitation involves coercion, duress, or harassment. ABA Model Rule 7.3. Although Ohio did not adopt the Model Rule, the rule provides precautionary guidelines for attorneys desiring to solicit clients through targeted direct mail. In addition, many states require the inclusion of the words "Advertising Material" on the envelope and that the targeted mail materials be filed.
We have issued two earlier advisory opinions containing guidelines on lawyer advertising. In response to a 1989 request this Board found that a lawyer was prohibited from using telemarketing as a form of advertising. Telemarketing is an intrusive form of solicitation that creates the potential for overreaching and is an invasion of privacy which places undue pressure on the potential client for an immediate answer. Board of Commissioners Op. 90-2. In Op. 88-27, the Board stated that lawyers are permitted to advertise in the Talking Yellow Pages (TYP). TYP is primarily a form of advertising and there is nothing in DR 2-103 (E) that prohibits a lawyer from accepting employment received in response to his own advertising. The Board permitted this practice based on the relaxation of the rules regarding lawyer advertising following the Shapero decision.
In conclusion, it is our opinion and you are so advised that a lawyer or law firm may advertise their services by mail to specific clients who may need the services of an attorney provided the advertisement does not contain false, fraudulent, misleading or deceptive statements or claims. Attorneys who choose to use direct mail should review DR 2-101(c), defining false or misleading communication. Those charged with a crime may be more vulnerable to suggestion or promises of performance than an ordinary person. An attorney who targets such potential clients should be careful not to frighten or misinform them or misrepresent the burden of proof that the government bears. The attorney must take care not to interfere with an existing or ongoing attorney-client relationship.
This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.