Is a personalized law-firm advertising letter to a business prospect a direct-mail solicitation that must carry the 'Advertising Material' label?
Ohio BPC Opinion 2007-005: Personalized Advertising Letters to Business Clients as Direct-Mail Solicitation Under Rule 7.3
Short answer: The opinion concludes that a personalized letter advertising legal services to a prospective business client is a direct-mail solicitation that must comply with Rule 7.3(c), including the "Advertising Material" recital and disclosure of how the firm obtained the recipient's identity.
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
A law firm wanted to mail personalized letters, with a brochure, to prospective business clients drawn from trade-organization membership lists, addressing each letter's salutation to the business's contact person. The question was whether such a letter is a direct-mail solicitation governed by Rule 7.3(c) or a general announcement outside that rule. The Board concluded it is a direct-mail solicitation subject to Rule 7.3(c).
The Board acknowledged that the firm would not reasonably believe these businesses needed legal services in a "particular matter," only that they might have a general need. But it concluded that the personalization itself triggers Rule 7.3(c). A personalized letter implies a familiarity with the recipient and the recipient's affairs, so it is not a general announcement within Comment [7] to Rule 7.3 (which covers things like changes in personnel or office location). Because it is a solicitation, the Rule 7.3(c) safeguards apply.
Applied to these facts, the Board said the letter should disclose accurately and fully how the firm obtained the recipient's identity (here, from trade-organization membership lists), should include the "Advertising Material" or "Advertisement Only" recital in the text of the letter and on the outside envelope, and must refrain from expressing any predetermined evaluation of the merits of a matter the business might pursue. The opinion situated this within the broader advertising rules (Rules 7.1, 7.2, 7.3), noting Rule 7.1's bar on false, misleading, or nonverifiable communications and Rule 7.2(a)'s general permission to advertise through written communication.
In practice
The opinion holds that, under Ohio Rule 7.3 as adopted effective February 1, 2007, a personalized advertising letter to a prospective business client is a direct-mail solicitation subject to Rule 7.3(c), even without a reasonable belief that the recipient needs legal help in a particular matter. Per the opinion, such a letter should disclose how the firm obtained the recipient's identity, should carry the "Advertising Material" or "Advertisement Only" recital in the text and on the envelope, and must not express a predetermined evaluation of the merits of any matter the business might pursue. The opinion distinguishes this from a general announcement (such as a change in personnel or office location), which Comment [7] places outside the rule.
Common questions
Q: Does labeling depend on whether the firm knows the business has a specific legal problem?
A: No. The opinion concludes that personalization alone triggers Rule 7.3(c), even where the firm reasonably believes only a general need, not a particular matter, exists.
Q: What must a complying letter contain?
A: Per the opinion, it must disclose how the firm obtained the recipient's identity, include the "Advertising Material" or "Advertisement Only" recital in the text and on the envelope, and avoid any predetermined evaluation of the merits.
Q: Is a true general announcement treated the same way?
A: No. The opinion explains that general announcements, such as changes in personnel or office location, are not solicitations under Comment [7] to Rule 7.3 and do not require the Rule 7.3(c) safeguards.
Background and rules framework
The opinion interprets the Ohio advertising rules, principally Ohio Prof. Cond. R. 7.3 (direct contact with prospective clients), including the Rule 7.3(c) requirements for written solicitations, along with R. 7.1 (communications concerning a lawyer's services) and R. 7.2(a) (advertising) (Model Rules 7.3, 7.1, 7.2). It also draws on the Rule 1.0(j) definition of "reasonable belief."
Citations and references
Rules of Professional Conduct:
- Ohio Prof. Cond. R. 7.3(a)-(e) and Comment [7]; R. 7.1; R. 7.2(a) and Comment [2]; R. 1.0(j) (Model Rules 7.3, 7.1, 7.2)
See also
- Ohio BPC Op. 2006-004: Announcing the Opening of a Law Practice and the Direct-Mail Solicitation Rules
- Ohio BPC Op. 2004-001: Unsolicited E-Mail Advertising as Targeted Direct Mail
- Ohio BPC Op. 2002-007: Advertising Past Settlement or Verdict Amounts
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_07-005.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
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
(614) 387-9370 (888) 664-8345 FAX: (614) 387-9379
www.sconet.state.oh.us
OFFICE OF SECRETARY
OPINION 2007-5
Issued June 8, 2007
SYLLABUS: A lawyer’s or law firm’s advertising of legal services to a
prospective business client through a personalized letter addressed to a contact
person at the business is a direct mail solicitation subject to the requirements of
Rule 7.3(c). A lawyer or law firm should disclose in the letter how the identity of
the prospective client was obtained. A lawyer or law firm should include the
recital “Advertising Material” or “Advertisement Only” in the text of the letter and
on the envelope. And, a lawyer or law firm must refrain from addressing a
predetermined evaluation of the merits of any legal matter that the business
might pursue.
OPINION: This opinion addresses a question regarding a lawyer or law firm
advertising its legal services by sending a personalized letter to a prospective
business client. For purposes of this opinion, a personalized letter is one in
which the salutation of the letter is addressed to a specific person or a specific
business.
Is a lawyer’s or law firm’s advertising of legal services through a
personalized letter addressed to a contact person of a prospective
business client a direct mail solicitation subject to the requirements
of Rule 7.3(c), or a general announcement not subject to the
requirements of Rule 7.3(c)?
A law firm wants to send personalized letters to prospective business clients to
advertise the law firm’s services and areas of practice and to announce the
addition of a new attorney and a new practice area. A law firm brochure would
be enclosed with each letter. The law firm provides legal services in areas of the
law of interest to these businesses.
The law firm obtained the names and addresses of prospective business clients
and their contact persons from the membership lists of trade organizations in the
city and metropolitan area in which the law firm is located. The salutation in each
letter would be addressed to the contact person for the business.
Op. 2007-5 2
Advertising of legal services is governed by Rules 7.1, 7.2, 7.3, 7.4, and 7.5 of
the Ohio Rules of Professional Conduct. Lawyers should review these rules in
their entirety, but Rules 7.1, 7.2(a), and 7.3 are most pertinent to this inquiry.
In advertising legal services, false, misleading, or nonverifiable communication
about the lawyer or the lawyer’s services is prohibited by Rule 7.1.
RULE 7.1: COMMUNICATIONS CONCERNING A LAWYER’S
SERVICES
A lawyer shall not make or use a false, misleading, or
nonverifiable communication about the lawyer or the lawyer’s
services. A communication is false or misleading if it contains a
material misrepresentation of fact or law or omits a fact necessary
to make the statement considered as a whole not materially
misleading.
Advertisement of legal services by written communication, as well as other types
of communication, is broadly permitted by Rule 7.2(a).
Rule 7.2 ADVERTISING AND RECOMMENDATION OF
PROFESSIONAL EMPLOYMENT
(a) Subject to the requirements of Rules 7.1 and 7.3, a
lawyer may advertise services through written, recorded, or
electronic communication, including public media.
Comment [2] to Rule 7.2 explains that the rule “permits public dissemination of
information concerning a lawyer’s name or firm name, address, and telephone
number; the kinds of services the lawyer will undertake; the basis on which the
lawyer’s fees are determined, including prices for specific services and payment
and credit arrangements; a lawyer’s foreign language ability; names of
references and, with their consent, names of clients regularly represented; and
other information that might invite the attention of those seeking legal
assistance.”
Direct contact with prospective clients is governed by Rule 7.3. All of the
provisions of this rule are important, but subsection (c) is of particular pertinence
to this opinion.
RULE 7.3: DIRECT CONTACT WITH PROSPECTIVE CLIENTS
(a) A lawyer shall not by in-person, live telephone, or
real-time electronic contact solicit professional employment from a
prospective client when a significant motive for the lawyer’s doing
Op. 2007-5 3
so is the lawyer’s pecuniary gain, unless either of the following
applies:
(1) the person contacted is a lawyer;
(2) the person contacted has a family, close
personal, or prior professional relationship with the lawyer.
(b) A lawyer shall not solicit professional employment
from a prospective client by written, recorded, or electronic
communication or by in-person, telephone, or real-time electronic
contact even when not otherwise prohibited by division (a), if either
of the following applies:
(1) the prospective client has made known to the
lawyer a desire not to be solicited by the lawyer;
(2) the solicitation involves coercion, duress, or
harassment.
(c) Unless the recipient of the communication is a person
specified in division (a)(1) or (2) of this rule, every written, recorded,
or electronic communication from a lawyer soliciting professional
employment from a prospective client whom the lawyer reasonably
believes to be in need of legal services in a particular matter shall
comply with all of the following:
(1) Disclose accurately and fully the manner in
which the lawyer or law firm became aware of the identity
and specific legal need of the addressee;
(2) Disclaim or refrain from expressing any
predetermined evaluation of the merits of the addressee’s
case;
(3) Conspicuously include in its text and on the
outside envelope, if any, and at the beginning and ending of
any recorded or electronic communication the recital -
“ADVERTISING MATERIAL” or “ADVERTISEMENT ONLY.”
(d) Prior to making a communication soliciting
professional employment from a prospective client pursuant to
division (c) of this rule to a party who has been named as a
defendant in a civil action, a lawyer or law firm shall verify that the
party has been served with notice of the action filed against that
party. Service shall be verified by consulting the docket of the court
Op. 2007-5 4
in which the action was filed to determine whether mail, personal,
or residence service has been perfected or whether service by
publication has been completed. Division (d) of this rule shall not
apply to the solicitation of a debtor regarding representation of the
debtor in a potential or actual bankruptcy action.
(e) If a communication soliciting professional employment
from a prospective client or a relative of a prospective client is sent
within thirty days of an accident or disaster that gives rise to a
potential claim for personal injury or wrongful death, the following
“Understanding Your Rights” shall be included with the
communication. [Omitted].
At issue in this opinion is whether a lawyer’s advertising of legal services through
a personalized letter to a prospective business client is a direct mail solicitation
subject to the requirements of Rule 7.3(c), or a general announcement not
subject to the requirements of Rule 7.3(c).
General announcements are treated differently from direct mail solicitation of
prospective clients. Comment [7] to Rule 7.3 explains that “[g]eneral
announcements by lawyers, including changes in personnel or office location, do
not constitute communications soliciting professional employment from a client
known to be in need of legal services within the meaning of this rule.”
Direct mail solicitations letters are subject to the requirements of Rule 7.3(c)(1)
through (3) when a lawyer sends a letter “soliciting professional employment from
a prospective client whom the lawyer reasonably believes to be in need of legal
services in a particular matter.” First, there must be accurate and full disclosure
in the written communication of how the identity of the prospective client was
obtained and the specific legal need identified. Second, there must be a
disclaimer or a refraining from addressing a predetermined evaluation of the
merits of the addressee’s case. Third, there must be an inclusion of the recital
“Advertising Material” or “Advertisement Only” in the text of the letter and on the
outside envelope.
“‘Reasonable belief’ or ‘reasonably believes’ when used in reference to a lawyer
denotes that the lawyer believes the matter in question and that the
circumstances are such that the belief is reasonable.” Rule 1.0(j): Terminology.
As to the facts presented, there is no indication that the lawyer or law firm would
have a reasonable belief that the businesses listed on the membership list of a
trade organization would be in need of legal services in a “particular matter.” But,
it is likely that the lawyer or law firm would have a reasonable belief that a
business listed on a trade organization membership would have a “general need”
for the legal services that the lawyer or law firm provides.
Op. 2007-5 5
The Board’s view is that the personalization of an advertising letter to a
prospective client, even in the absence of a reasonable belief of legal needs in a
“particular matter,” is enough to trigger the direct mail solicitation requirements of
Rule 7.3(c).
A personalized letter is not a general announcement. Personalization implies a
familiarity with the recipient and the recipient’s matters, whether general legal
needs or specific legal needs. For this reason the safeguards of Rule 7.3(c)(1)
through (3) are applicable. The lawyer or law firm should fully and accurately
disclose in the letter how the identity of the prospective client was obtained--in
this instance, from the membership lists of trade organizations. The lawyer or
law firm should include in the text of the letter and on the outside envelope the
recital “Advertising Material” or “Advertisement Only”. And, the law firm must
refrain from addressing a predetermined evaluation of the merits of any legal
matter that the business might pursue.
In closing the Board advises, as follows. A lawyer’s or law firm’s advertising of
legal services to a prospective business client through a personalized letter
addressed to a contact person at the business is a direct mail solicitation subject
to the requirements of Rule 7.3(c). A lawyer or law firm should disclose in the
letter how the identity of the prospective client was obtained. A lawyer or law firm
should include the recital “Advertising Material” or “Advertisement Only” in the
text of the letter and on the envelope. And, a lawyer or law firm must refrain from
addressing a predetermined evaluation of the merits of any legal matter that the
business might pursue.
Advisory Opinions of the Board of Commissioners on Grievances and
Discipline are informal, nonbinding opinions in response to prospective or
hypothetical questions regarding the application of the Supreme Court
Rules for the Government of the Bar of Ohio, the Supreme Court Rules for
the Government of the Judiciary, the Ohio Rules of Professional Conduct,
the Ohio Code of Judicial Conduct, and the Attorney’s Oath of Office.