Can a New Mexico lawyer send a direct-mail letter advertising services and fees to banks and other potential clients?

Plain-English summary

A lawyer asked whether a proposed letter, to be mailed to banks, credit unions, and similar potential clients, was proper under New Mexico's attorney-advertising standards. The letter described the lawyer's certification and practice, listed flat fees for replevins and foreclosures and a contingent fee for collections, and invited recipients to consider him for legal services. The opinion analyzed the letter against the recent federal decision L.M. v. The Disciplinary Board, in which the court held Rule 2-103(A) unconstitutional as applied to a direct-mail letter and declared that an attorney may send by direct mail truthful, non-misleading advertising of services and fees to persons who might generally find such services useful but are not known to need them.

The opinion concluded that the proposed letter was substantially in accord with the court's guidelines and could be sent with modifications. First, the Committee concluded it was misleading to state that the lawyer was "certified by the New Mexico Supreme Court," because a reader might infer the Court itself evaluated his expertise when in fact the Specialization Board sets the prerequisites; the lawyer was advised to say his practice was primarily limited to commercial law. Second, the Committee concluded the lawyer should disclose his hourly rate, since counterclaims could arise in replevin and foreclosure actions and fee information is a purpose of advertising, and should be prepared to explain costs, gross receipts tax, and how contingency percentages are computed.

The opinion concluded that two subjective statements (a reference to "excellent" commercial clients and to "modest" office overhead) should be reconsidered against Rule 2-101(A), which prohibited self-laudatory statements, and the proposed Model Rule 7.1 advertising standards then recommended for adoption in New Mexico; the Committee viewed both statements as testimonial or endorsement in character, with the overhead claim difficult to substantiate, and recommended rewording. It also concluded the lawyer was strongly encouraged to stamp the envelopes "advertisement" as required by Model Rule 7.3.

Currency note

This opinion was issued in 1984, when New Mexico lawyers were governed by the former New Mexico Code of Professional Responsibility, which the State Bar later replaced with the Rules of Professional Conduct; it also predates the State Bar of New Mexico's November 3, 2008 revisions to those Rules (the New Mexico adoption of the ABA Ethics 2000 changes). The advertising rules it cites have since changed, and the constitutional law of lawyer advertising has developed further. 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: Could a New Mexico lawyer send a direct-mail advertising letter to potential clients?

A: Yes. The opinion concluded, following L.M. v. Disciplinary Board, that a lawyer could send by direct mail truthful, non-misleading advertising of services and fees to persons who might generally find such services useful but were not known to need them.

Q: Why did the opinion object to the "certified by the New Mexico Supreme Court" language?

A: The opinion concluded the phrase was misleading because a reader might infer the Court personally evaluated the lawyer's expertise, when in fact the Specialization Board set the prerequisites; it advised saying the practice was "primarily limited to commercial law."

Q: Did the letter have to disclose the lawyer's fees more fully?

A: The opinion concluded the lawyer should disclose his hourly rate, because counterclaims could arise in the listed actions, and should be prepared to explain costs, gross receipts tax, and how contingency percentages were computed.

Q: Did the envelope have to be marked?

A: Yes. The opinion concluded the lawyer was strongly encouraged to stamp the outside of the envelopes "advertisement," as required by Model Rule 7.3.

Background and rules framework

The opinion interpreted the former New Mexico Code of Professional Responsibility, Rule 2-103(A) (solicitation) and Rule 2-101(A) (self-laudatory public communication), against the federal decision L.M. v. The Disciplinary Board, and looked to the proposed Model Rules of Professional Conduct (Rule 7.1 et seq. and Rule 7.3) then recommended for adoption in New Mexico.

Citations and references

Rules of Professional Conduct (former Code and proposed Model Rules):

• Model Code DR 2-103(A) / NM Code Rule 2-103(A) (solicitation; held unconstitutional as applied in L.M.)
• Model Code DR 2-101(A) / NM Code Rule 2-101(A) (self-laudatory statements)
• Model Rule 7.1 (communications about a lawyer's services), proposed for adoption
• Model Rule 7.3 (direct contact; "advertisement" labeling), proposed for adoption

Cases:

• L.M. v. The Disciplinary Board of the Supreme Court of the State of New Mexico, No. 83-0077HB (D.N.M.).

See also

• NM Ethics Op. 1983-1: Use of the National Legal Referral Service
• NM Ethics Op. 2006-2: Commenting on Judicial Candidates

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1984/1984-3.pdf

Original opinion text

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

Advisory Opinion 1984-3
An attorney has requested an opinion from the Advisory Opinions Committee regarding the propriety of a letter under the standards set for attorney advertising in New Mexico. The attorney intends to mail the letter to banks, credit unions and similar potential clients. The letter reads as follows:
Recently the United States District Court for the District of New Mexico ruled that direct mail solicitation is a permissible form of attorney advertising when not misleading. Although the new ruling offers some potential for abuse, it also offers an opportunity for attorneys to directly contact prospective clients and give them information regarding the attorney and his services that the prospective client might otherwise be unaware of. I am sending this letter to acquaint you with my qualifications and fees.
I am certified by the New Mexico Supreme Court as primarily limiting my practice to commercial law. About 75% of my practice involves commercial and retail collections, including replevins and foreclosures. I have several excellent commercial clients including one hospital and one acceptance company that specializes in mobile home financing. I have been an attorney for approximately eight years, having practiced in New York for three years and in New Mexico for the last five.
I have also done the best that I can to keep my office overhead expenses modest so that I can charge reasonable legal fees. I charge $300.00 for replevins and $400.00 for foreclosures, if there are no counterclaims, and on a contingent fee basis plus costs for straight collections.
I hope that you will at least consider me in the event that you need legal services. will certainly supply you with additional information and references upon request.
In the recent case of L.M. v. The Disciplinary Board of the Supreme Court of the State of New Mexico, et al., 83-0077HB, the federal district court considered the propriety of a letter mailed directly to restaurant owners in Albuquerque in which an attorney offered his services in assisting the restaurant owners in acquiring beer and wine licenses. The Disciplinary Board had ruled it was inappropriate and violated Rule 2-103(A) of the N.M. Code of Professional Responsibility. The court held that Rule 2-103(A) was unconstitutional as applied to Plaintiff's letter and declared that an attorney may send by direct mail truthful, non-misleading advertising for legal services and fees to persons who in general might find such services useful, but who are not known to need legal services of the type offered.
The nature of the letter presented to this Committee is similar to the letter in L.M. v. The Disciplinary Board, supra, and is substantially in accordance with the guidelines established by the court therein. The Committee concludes that it is appropriate for the attorney to send his proposed letter with two modifications. First, the Committee believes it is misleading and incomplete to state that he is "certified by the New Mexico Supreme Court." A prospective client may infer that the New Mexico Supreme Court has personally evaluated the attorney and certified as to his expertise when in fact it is the Specialization Board appointed by the Supreme Court which establishes the prerequisites for the registration of attorneys. Counsel is therefore advised to limit his statement to the effect that "my practice is primarily limited to commercial law."
Second, counsel should disclose his hourly rate. Counterclaims may arise in replevin actions and particularly in foreclosure actions when more than one lien is asserted. One of the purposes of advertising is to provide prospective clients with information regarding an attorney's services and fees. Information regarding the attorney's hourly rate would be an important fact to prospective clients. Although the Committee does not believe it is essential to describe in great detail his fee and cost structure in the letter, we assume that counsel will fully explain to prospective clients about such matters as: (a) whether the quoted fee includes or excludes court costs and gross receipts tax; (b) the extent of costs, particularly in foreclosure actions; and (c) contingent fee rates and whether the percentage contingency is computed before or after deduction of costs.
Finally, there is some concern regarding two subjective statements in the proposed letter that counsel should reconsider. The first statement occurs in paragraph 2 where counsel refers to excellent commercial clients and the second statement occurs in paragraph 3 where counsel discusses his modest office overhead expenses. We recognize that in L.M. v. The Disciplinary Board, supra, the court found the use of the term "expert" in the letter to be essentially factual in nature, susceptible of measurement, and not actually or inherently misleading. Counsel should consider whether his subjective statements are factual, reasonably susceptible of measurement and not misleading.
Counsel is further asked to review Rule 2-101(A) of the Code of Professional Responsibility which prohibits self-laudatory statements in any form of public communication and the advertising rules contained in Model Rule 7.1 et seq. of the Model Rules of Professional Conduct which have been recommended for adoption in New Mexico by the Subcommittee of the Task Force Committee on the Regulation of the Legal Profession that was formed by the New Mexico Supreme Court on January 25, 1984. A copy of those rules accompany this opinion to counsel. The Committee feels that both subjective statements in the proposed letter are a testimonial about or an endorsement of the attorney and that the statement about overhead would be too difficult for a prospective client to factually substantiate. The Committee recommends that those particular statements be reworded. In any event, counsel is strongly encouraged to stamp the outside envelopes of the proposed letter with the word "advertisement" in the manner required by Model Rule 7.3.