Can I send direct-mail advertising for my employment-law practice to companies that have had discrimination complaints filed against them with a human rights agency?

Currency note

This opinion was issued in 2001, before Rhode Island's later renumbering of the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Plain-English summary

The inquiring attorney planned to operate an employment-law consulting business, holding out as a lawyer while also offering services such as compliance audits, personnel training, and drafting employee manuals. As part of the marketing plan, the attorney intended to mail flyers and brochures to companies that currently had, or previously had, complaints filed against them with the Rhode Island Commission for Human Rights (RICHR) or the EEOC.

The panel first held that because the attorney intended to hold himself or herself out as an attorney through the business, the Rules of Professional Conduct governed the venture in full, citing its own prior opinion, R.I. Sup. Ct. Ethics Advisory Panel Op. 93-54 (1993). It then applied Rule 7.3(b), under which direct-mail solicitation of prospective clients is generally permitted subject to labeling and filing requirements in Rule 7.3(b)(1), except where Rule 7.3(b)(2) applies. Rule 7.3(b)(2)(a) barred written solicitation concerning a specific matter where the lawyer knows or reasonably should know the recipient is represented by counsel on that matter.

Applying that rule, the panel concluded the attorney could not send mailings to employers represented by counsel on matters currently pending before the RICHR or EEOC, but could send mailings to employers with prior, closed complaints and to employers with pending matters who were not represented by counsel, so long as the mailings met Rule 7.3(b)(1)'s advertisement-labeling and disciplinary-counsel filing requirements. The panel also noted such communications remained subject to Rule 7.1 (false or misleading statements), Rule 7.4 (stating a concentration without the required disclaimer), and Rule 7.5 (firm names and letterhead).

Common questions

Q: Can I send marketing mail to a company that currently has a discrimination complaint pending against it?

A: Only if the company is not represented by counsel on that pending matter. If it is represented, Rule 7.3(b)(2)(a) bars the mailing.

Q: Can I mail companies that had a complaint in the past but it's since resolved?

A: Yes, according to this opinion, provided the mailing complies with Rule 7.3(b)(1)'s labeling and filing requirements.

Q: Does operating my practice as a consulting business change the analysis?

A: No. The panel held that because the attorney intended to hold out as a lawyer through the business, the Rules of Professional Conduct applied to the full range of services offered.

Background and rules framework

The opinion applies Rule 7.3(b) (Model Rule 7.3, Solicitation of Clients), which at the time permitted written direct-mail solicitation of prospective clients subject to advertisement labeling and a copy-filing requirement with Disciplinary Counsel, except where Rule 7.3(b)(2)(a) barred solicitation concerning a specific matter known to be handled by another lawyer for the recipient.

Citations and references

Rules of Professional Conduct:

• MR 7.3(b) (Solicitation of Clients, direct-mail requirements) / RI Rule 7.3(b)
• Rule 7.1, Rule 7.4, and Rule 7.5, noted as independently applicable to the communications

Other opinions cited:

• R.I. Sup. Ct. Ethics Advisory Panel Op. 93-54 (1993): the Rules of Professional Conduct govern a lawyer's consulting business where the lawyer holds out as an attorney

See also

• Arizona State Bar Op. 95-12: Solicitation; Mailings
• ABA Formal Op. 482: Ethical Obligations Related to Disasters

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%202001-01.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Final

                               Rhode Island Supreme Court
                                   Ethics Advisory Panel
                            Opinion No. 2001-01 Request No. 819
                                   Issued March 8, 2001

Facts:

    The inquiring attorney plans to establish a consulting business which will offer services related to

employment law.1 As principal of this business, the inquiring attorney intends to hold himself/herself out
as a lawyer concentrating in employment law, and to provide legal services related to administrative
hearings such as hearings before the human rights commission. In addition, this business will offer other
services to employers such as the following: legal audits to ensure that employers are in compliance with
federal and state laws and regulations; personnel training regarding compliance; reviewing and drafting
employee manuals and agreements; and conducting internal investigations. No other professionals will
be involved in the business as owners, partners, managers or employees.

    Part of the inquiring attorney's marketing strategy is to send mailings of flyers, brochures, and

similar materials advertising the business' services to companies that are currently or have been
previously the subject of complaints filed with the Rhode Island Commission for Human Rights
(RICHR) or the Equal Employment Opportunity Commission (EEOC).

Issue Presented:

    The inquiring attorney asks whether sending mailings to companies that have had past or have

pending matters before the RICHR or the EEOC is a violation of Rule 7.3(b)(2)(a) of the Rules of
Professional Conduct.

Opinion:

    Rule 7.3(b)(2)(a) prohibits the inquiring attorney from sending direct-mail solicitations to

employers that are represented by counsel on matters pending before the RICHR or the EEOC. The
inquiring attorney may send direct-mail solicitation to employers that have had prior matters before
those agencies, and to employers that are not represented by counsel on matters currently pending
before those agencies, provided the inquiring attorney complies with the labeling and filing requirements
of Rule 7.3(b)(1).

1
 The inquiring attorney states that the business will operated as a corporation. The Panel advises

him/her that the practice of law in corporate form is governed by Rule 10 of the Supreme Court Rules
on Admission of Attorneys and Others to Practice Law.
Final 2001-01
Page 2

Reasoning:

    The Rules of Professional Conduct govern the inquiring attorney's conduct with respect to the

consulting business and all the services that will be offered. The inquiring attorney proposes to offer to a
targeted population an array of services that are related to the area of employment law. Even though
the inquiring attorney will provide some services as a consultant, viz., conducting legal audits,
compliance training, reviewing and drafting employee manuals, and conducting internal investigations,
he/she also intends to hold himself/herself out as an attorney in this business. Therefore, he/she must
abide by the Rules of Professional Conduct. See R.I. Sup. Ct. Ethics Advisory Panel Op. 93-54
(1993).

     Rule 7.3 sets forth the parameters for solicitation of prospective clients. With the exception of

situations delineated in Rule 7.3(b)(2), direct-mail solicitation is permitted subject to the labeling and
filing requirements of Rule 7.3(b)(1). In pertinent part, Rule 7.3(b) states as follows:

    (b)     Written communication.

            (1) Written communication to prospective clients with whom
            the lawyer has no family or prior professional relationship are
            subject to the following requirements:

                  (a) Such written communications shall be plainly
                  marked "advertisement" on the face of the envelope
                  and at the top of each page of the written
                  communication in type one size larger than the largest
                  type used in the written communication.
                  (b) A copy of each such written communication
                  shall be sent to the Supreme Court Disciplinary
                  Counsel and another copy shall be retained by the
                  lawyer for three (3) years. If written
                  communications identical in content are sent to two
                  (2) or more prospective clients, the lawyer may
                  comply with this requirement by sending a single
                  copy together with a list of the names and addresses
                  of persons to whom the written communication was
                  sent to the Supreme Court Disciplinary Counsel as
                  well as retaining the same information.

Final 2001-01
Page 3

            (2) A lawyer shall not send, or knowingly permit to be sent,
            on behalf of the lawyer, the lawyer's firm, the lawyer's partner,
            an associate, or any other lawyer affiliated with the lawyer or
            the lawyer's firm a written communication to any prospective
            client for the purpose of obtaining professional employment if:

                  (a) The written communication concerns a specific
                  matter and the lawyer knows or reasonably should
                  know that the person to whom the communication is
                  directed is represented by a lawyer;

    Accordingly, the Panel concludes:

    (1) The inquiring attorney is prohibited by Rule 7.3(b)(2)(a) from sending direct-mail
    solicitations, including flyers, brochures, letters, and other materials that advertise his/her
    services, to employers that are represented by counsel on matters pending before the RICHR
    or the EEOC.

    (2) The Rules permit the inquiring attorney to send direct-mail solicitations to employers that
    are not represented in pending matters before those agencies, and to employers who have had
    prior matters before the agencies. The solicitation is subject to the filing and labeling
    requirements of Rule 7.3(b)(1).

     As with all communications concerning a lawyer's services, such written communica-

tions to prospective clients are also subject to Rule 7.1 (a lawyer shall not make a false or misleading
statement about the lawyer or the lawyer's services), Rule 7.4 (a lawyer may not indicate that he/she
concentrates in an area of law without stating that Court does not license or certify specialists), and Rule
7.5 (regarding firm names, letterhead, and the use of trade names.)