Could a North Dakota lawyer mail former and prospective clients about new licensure and an expanded firm?
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This page answers the general question as of 1992. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A lawyer asked about mailing former and prospective clients to announce admission in another state and the addition of another lawyer to the firm. The committee analyzed North Dakota Rule 7.1's advertising and solicitation provisions against the Supreme Court's decision in Shapero v. Kentucky Bar Ass'n.
The committee said Shapero invalidated a blanket ban on targeted direct mail for pecuniary gain. It noted that North Dakota had not adopted Model Rule 7.3 and had chosen not to regulate targeted mail to the extent Shapero permitted. It concluded that the described mailings to former and prospective clients were not prohibited under the state rules if they were not false or misleading.
The committee also distinguished commentary and an earlier bar resolution expressing disfavor for direct mail from the authoritative text of the rule. Its conclusion addresses the conduct rules as they stood in 1992.
Currency note
This opinion was issued in 1992, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” 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 Treat this page as historical context, not current guidance.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, deadline, or requirement.
Common questions
Q: Could the lawyer send the described targeted letters?
A: Under the rules then in force, the committee said yes if the letters were not false or misleading.
Q: Did North Dakota adopt Model Rule 7.3?
A: The committee said it had not adopted that model provision and instead distinguished advertising and solicitation under North Dakota Rule 7.1.
Q: Did the bar's earlier statement of disfavor itself control?
A: No. The committee said comments guide interpretation, but the rule text is authoritative, and Shapero had affected the prior statement's force.
Background and rules framework
The opinion applies North Dakota Rule 7.1(a) and (b), discusses Model Rules 7.2 and 7.3, and relies on Shapero in evaluating targeted mail under the 1992 rules.
Citations and references
Rules of Professional Conduct:
- North Dakota Rule 7.1(a) and (b), advertising and solicitation.
- Model Rules 7.2 and 7.3, discussed in the targeted-mail history; North Dakota had not adopted Model Rule 7.3.
Cases:
- Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988), targeted direct mail and the First Amendment.
See also
- ND Ethics Op. 1992-09: listing mediation as a service
- ND Ethics Op. 1989-05: lawyer and accountant advertising
Source
- Landing page: https://www.sband.org/page/ethics_opinions
- Original PDF: https://web.archive.org/web/20250000000000id_/https://www.sband.org/resource/resmgr/docs/for_lawyers/92-15.pdf
Original opinion text
Full opinion text unavailable from the official source; see the linked source above for the complete text.
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