May I send an 'advertisement'-labeled direct mailing to businesses affected by a new regulation, offering legal help? And does it matter if a recipient is represented by counsel on unrelated matters?

Plain-English summary

The inquiring attorney wanted to send a direct mailing to all businesses affected by a recent regulatory change, advising them of the new requirements and offering legal assistance. The mailing list would come from public records of the state commission with jurisdiction, the mailing would be marked "advertisement" in full compliance with Rule 7.3(b), and it would not be sent to anyone the attorney knew to be represented by counsel on such regulatory matters. The attorney asked whether the mailing would violate Rule 7.3, and whether it would violate the Rule if sent to a person represented by an attorney on matters unrelated to the new regulations.

The Panel answered no to both, provided the advertisement rules were strictly observed. It set out Rule 7.3(a)'s solicitation standard and Rule 7.3(b)(1)'s requirements: written communications to prospective clients with whom the lawyer has no family or prior professional relationship must be plainly marked "advertisement" on the envelope and at the top of each page in type one size larger than the largest type used, and a copy must be sent to Supreme Court Disciplinary Counsel and retained for three years.

The Panel then applied Rule 7.3(b)(2)(a), which bars sending a written communication concerning a specific matter to a person the lawyer knows or reasonably should know is represented by a lawyer in that matter. The attorney could not send the mailing to a prospective client the attorney knew was represented by counsel regarding the regulatory matters, but the fact that a recipient was represented on other, unrelated matters did not bar the communication. The Panel found the Rule clear on its face: the prohibition applies to someone represented by counsel in the matter in question.

Currency note

This opinion was issued in 1996 (Opinion 96-03, issued February 8, 1996), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 7.3 as it stood at the time. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, and the lawyer-advertising and solicitation rules have been amended repeatedly since this opinion issued. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, label, or filing requirement mentioned here.

Common questions

Q: Can I send a direct-mail advertisement to businesses affected by a new regulation?

A: Yes, the Panel said, provided the advertising rules are strictly observed, including marking the communication "advertisement" and filing a copy with Disciplinary Counsel under Rule 7.3(b)(1).

Q: What must an "advertisement" mailing look like under the Rule?

A: The Panel quoted Rule 7.3(b)(1)(a): it must be plainly marked "advertisement" on the envelope and at the top of each page, in type one size larger than the largest type used in the communication.

Q: Does it matter that a recipient already has a lawyer for something else?

A: No. The Panel held representation on unrelated matters does not bar the mailing; only a recipient known to be represented on the regulatory matter itself may not be contacted under Rule 7.3(b)(2)(a).

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 7.3 (direct contact with prospective clients), the analog of Model Rule 7.3. The Panel applied both the labeling and filing requirements of Rule 7.3(b)(1) and the represented-person bar of Rule 7.3(b)(2)(a), reading the latter to reach only representation "in the matter in question."

Citations and references

Rules of Professional Conduct:

• MR 7.3 / RI RPC 7.3(a) (direct contact with prospective clients; solicitation for pecuniary gain)
• RI RPC 7.3(b)(1) ("advertisement" labeling and Disciplinary Counsel filing requirements)
• RI RPC 7.3(b)(2)(a) (no written solicitation to a person known to be represented in the matter)

See also

• RI EAP Opinion 96-01: an employer may announce an attorney's fixed-fee legal services to employees under Rule 7.3
• RI EAP Opinion 94-8: letters offering services to association members must comply with Rule 7.3

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%2096-03.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
OPINION 96-03, - REQUEST # 645
ISSUED - FEBRUARY 8, 1996

The inquiring attorney wants to send a direct mailing to all businesses affected by a recent regulatory change to advise them of the new requirements and to offer legal assistance with respect thereto. The mailing list will be compiled from the public records of the state commission having jurisdiction. The mailing will be marked "advertisement" in full compliance with Rule 7.3(b) and would not be sent to any person or entity which the inquiring attorney knows is represented by counsel with respect to such regulatory matters.

Issues Presented:

1) Will the above described mailing violate Rule 7.3; and
2) If the mailing were sent to a person who is represented by an attorney on matters unrelated to the new regulations, would the mailing violate Rule 7.3.

Opinion:

1) No, provided the Rules regarding advertisement are strictly observed; and
2) No.

Reasoning:

Rule 7.3 entitled "Direct Contact with Prospective Clients" sets forth the criteria regarding solicitation. That Rule states the following in part:

(a) A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. The term "solicit" includes contact in person, by telephone or telegraph, or by other communication directed to a specific recipient and includes any written form of communication directed to a specific recipient and not meeting the requirements of paragraph (b) of this rule.

(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.

Any direct solicitation to prospective clients, with whom the lawyer has no family or prior professional relationship must be plainly marked according to (b)(1)(a) and a copy must be sent to Disciplinary Counsel pursuant to (b)(1)(b) of Rule 7.3.

Rule 7.3(b)(2) entitled "Direct Contact with Prospective Clients" states:

(b) Written communication.....

(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 in the matter;

Pursuant to the Rule, the inquiring attorney may not send a written communication to a prospective client with respect to the new requirements if the inquiring attorney knows that the client is represented by counsel regarding such regulatory matters. However, the fact that the inquiring attorney knows the prospective client to be represented by counsel on other unrelated matters does not prohibit the communication under Rule 7.3(b). The Panel finds this rule to be clear on its face. The prohibition against communication with a prospective client applies to someone represented by counsel in the matter in question.