Can I send letters offering my services directly to people who were injured in an accident, or to people connected to someone who was injured?

Plain-English summary

An attorney asked the panel whether he could send letters offering his services directly to individuals who had been injured in an accident, or to individuals with some relationship to someone injured in an accident.

The panel quoted DR 2-103(A), which bars a lawyer from recommending employment of himself, his partner, or associate to a layperson who has not sought his advice regarding employment of a lawyer, except as authorized under DR 2-101(B). It found that neither the situations the attorney described nor the sample letters he submitted fell within DR 2-101(B)'s exceptions, so the proposed direct contact would violate DR 2-103(A).

The panel went on to note the limits of its own authority: it is empowered only to interpret the Rhode Island Code of Professional Responsibility, and because the Rhode Island Supreme Court had not yet amended the Code in response to the U.S. Supreme Court's decision in Shapero v. Kentucky Bar Association, the panel could not use that decision's rationale or holding in analyzing the attorney's inquiry.

Currency note

This opinion was issued in 1988, before the Rhode Island Supreme Court's adoption of the 2007 revisions to the Rules of Professional Conduct. The opinion itself notes that Rhode Island had not yet amended its Code of Professional Responsibility in response to Shapero v. Kentucky Bar Association (U.S. 1988), which held that targeted direct-mail solicitation of known prospective clients is constitutionally protected commercial speech. Subsequent rule amendments have addressed direct-mail solicitation; this opinion's DR 2-103(A) analysis reflects only the pre-amendment rule. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can I send letters directly to people injured in an accident, offering to represent them?

A: Not under this opinion's analysis of the rule as it then stood. The panel held such letters would violate DR 2-103(A), since the recipients had not sought the attorney's advice about hiring a lawyer.

Q: Didn't the U.S. Supreme Court say targeted direct-mail solicitation is protected speech?

A: Yes, in Shapero v. Kentucky Bar Association, decided shortly before this opinion. The panel explained it could not apply that decision because Rhode Island's Supreme Court had not yet amended the state's Code of Professional Responsibility to conform to it.

Background and rules framework

The opinion applies DR 2-103(A) (barring a lawyer from recommending his own employment to a layperson who has not sought advice about hiring a lawyer) and its DR 2-101(B) exceptions, from the ABA Model Code of Professional Responsibility then in force in Rhode Island, to proposed direct-mail letters to accident victims and their associates.

Citations and references

Rules of Professional Conduct:

• RI DR 2-103(A) (recommending one's own employment to a layperson who has not sought advice about hiring a lawyer)
• RI DR 2-101(B) (exceptions referenced but found inapplicable)

Statutes:

• None cited.

Cases:

• Shapero v. Kentucky Bar Association, 56 U.S.L.W. 4532 (U.S. June 13, 1988), targeted direct-mail solicitation as protected commercial speech (rationale not applied, as Rhode Island had not yet amended its Code)

Other opinions cited:

• None cited.

See also

• RI EAP Opinion 88-29: Reconsideration of Opinion 88-22's Direct-Mail Letters Under the New Rule 7.3, After Rhode Island Adopted the Model Rules: on the attorney's own request for reconsideration, the panel reaffirmed this holding under the newly adopted Rule 7.3.
• RI EAP Opinion 88-27: Mailing a Firm Newsletter to Non-Clients Under the Code of Professional Responsibility, Before Rhode Island Adopted Shapero: the panel's companion opinion, issued the following month, applying the same DR 2-103(A)/Shapero analysis to a general newsletter rather than targeted letters.
• ABA Formal Opinion 501: Solicitation
• Alabama Bar Opinion 1996-05: Direct Mail Advertising

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%2088-22.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

DIGEST OF ETHICS ADVISORY PANEL
OPINION #88-22, REQUEST #38
Issued September 22, 1988

An attorney seeks Panel advice as to whether he may send letters offering his services directly to individuals who have been injured in an accident or have some relationship with an individual injured in an accident.

Disciplinary Rule 2-103(A) provides that "[a] lawyer shall not, except as authorized in DR 2-101(B) recommend employment as a private practitioner of himself, his partner or associate to a lay person who has not sought his advice regarding employment of a lawyer." Disciplinary broadcast. Neither the situations described nor the sample letters submitted fall within the ambit of these exceptions. Thus, the direct contact which the attorney proposes would constitute a violation of DR 2-103(A).

The Ethics Advisory Panel of the Rhode Island Supreme Court is only empowered to interpret the Rhode Island Code of Professional Responsibility. The Rhode Island Supreme Court has not yet changed the Code in response to Shapero v. Kentucky Bar Association, 56 USLW 4532 (U.S. June 13, 1988); therefore the Panel cannot utilize the rationale or holding of Shapero in its analysis of the attorney's inquiry.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.