May a lawyer mail a periodic newsletter on legal topics to current clients, former clients, other professionals, and prospective clients as a way to attract business?

Plain-English summary

A lawyer asked whether mailing a monthly newsletter to current and former clients, other professionals (including non-lawyers such as CPAs), and prospective clients would violate the rules of professional conduct. The sample newsletter discussed revocable inter vivos trusts, listed seven advantages and disadvantages of using such a trust, and carried two footnotes: one describing the newsletter's origin and one warning that its general comments might not apply to a particular situation. The origin note stated the letter was "written personally by us" and based on "our concrete experiences in the local situation."

The committee noted the request arose as New Mexico transitioned to a new Code of Professional Responsibility effective January 1, 1987. Under the then-current Code, it identified provisions the newsletter might implicate (Rule 2-103 and Rule 2-104(A)(2)), but unanimously considered the newsletter a permissible solicitation for new business, relying on constitutional advertising protections from In re R.M.J., 455 U.S. 191 (1982), and an expansive reading of Rule 2-104(A)(4). Looking to the newly adopted rules, the committee pointed to Rule 7.2(a), which allows advertising "through written communication not involving personal solicitation," and observed that direct mail is not analogous to in-person solicitation because the overreaching and high-pressure dangers are absent (Spencer v. Honorable Justices of the Supreme Court of Pennsylvania, 579 F. Supp. 880 (E.D. Pa. 1984)).

The committee concluded the format was generally acceptable but that some statements emphasized the attorney's experience without objectively stating the basis for the claim, which may be misleading. It drew on Spencer (holding characterizations like "experienced" pilot or programmer inherently misleading) and Ohio's bar on "subjectively self-laudatory" statements under that state's version of ABA Model Rule 7.1, which New Mexico had adopted as the prohibition on "false or misleading communication about the lawyer or the lawyer's services." It also noted Rule 7.2(b)'s requirement that a copy of any written communication, and a record of when and where it was used, be kept for two years after its last dissemination.

Currency note

This opinion was issued in 1987, as New Mexico moved from the former Code of Professional Responsibility to the Rules of Professional Conduct (effective January 1, 1987); the opinion applies both regimes. It predates the State Bar of New Mexico's November 3, 2008 revisions to the Rules (the New Mexico adoption of the ABA Ethics 2000 changes), and lawyer-advertising rules have changed materially since. 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 lawyer mail an informational newsletter to prospective clients?

A: The opinion concluded yes; the committee unanimously treated the newsletter as a permissible written solicitation for new business under both the former Code and the newly adopted Rule 7.2(a), which allows advertising through written communication not involving personal solicitation.

Q: Is direct-mail advertising treated like in-person solicitation?

A: No. The committee observed, citing Spencer, that direct mail is not analogous to in-person solicitation because the overreaching and high-pressure sales dangers that justify restricting in-person contact are not present in a mailing.

Q: What made parts of the sample newsletter problematic?

A: The committee concluded that statements emphasizing the attorney's experience, without objectively stating the basis for them, may be misleading under the prohibition on false or misleading communications, so it advised placing less emphasis on the firm's experience.

Q: Did the lawyer have any record-keeping obligation for the newsletter?

A: Yes. The committee pointed to Rule 7.2(b), which required keeping a copy of any written communication, with a record of when and where it was used, for two years after its last dissemination.

Background and rules framework

The opinion straddled two regimes. Under the former Code of Professional Responsibility it considered Rules 2-103 and 2-104. Under the Rules of Professional Conduct effective January 1, 1987 it applied Rule 7.2 (advertising through written communication; record-keeping) read against the Rule 7.1 prohibition on false or misleading communications about a lawyer's services. These correspond to current Model Rules 7.1, 7.2, and 7.3.

Citations and references

Rules of Professional Conduct:

• Former Code Rules 2-103, 2-104(A)(2), 2-104(A)(4) (solicitation)
• Rule 7.1 (false or misleading communications); Rule 7.2(a), (b) (advertising by written communication; two-year record retention)

Cases:

• In re R.M.J., 455 U.S. 191 (1982), constitutional protection for lawyer advertising
• Spencer v. Honorable Justices of the Supreme Court of Pennsylvania, 579 F. Supp. 880 (E.D. Pa. 1984), direct-mail solicitation not analogous to in-person solicitation; "experienced" characterizations inherently misleading

See also

No sibling opinions yet indexed.

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/1987/1987-3.pdf

Original opinion text

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

Advisory Opinion 1987-3
Question Presented: Whether the attorney would be violating the Code of Professional Ethics in mailing out a monthly newsletter to current and former clients, other professionals (including non-lawyers, such as CPAS) and prospective clients.
Facts: The attorney attached a sample newsletter to the request and noted that each newsletter would include two advisory footnotes, one describing the origin of the newsletter, and the other warning that the general comments and solutions contained in the newsletter are not necessarily applicable to each particular situation that arises. The sample newsletter was about revocable inter vivos trusts. After defining such a trust and noting that many out-of-state publications recommend their use to avoid probate, the newsletter posed and answered the question of whether such trusts were good for Texas and New Mexico residents. The answer listed seven items of advantage or disadvantage in using such a trust, e.g., expense, confidentiality, tax savings, and the like. The note describing the origin of the newsletter stated, "In an effort to help those who are interested in estate planning and tax planning, we are writing a periodic letter of comments from our experience on these subjects ... [This letter] is written personally by us ... ; so, it is based on ... our concrete experiences in the local situation."
Conclusion: The attorney may send out a newsletter/solicitation provided that less emphasis is placed on the experience of the law firms.
Discussion: (Note. When the District 2 Committee met to discuss this issue, the New Mexico Supreme Court had not yet adopted the new Code of Professional Responsibility, effective January 1, 1987, which specifically addresses newsletter solicitations.) In our initial discussion, we noted various ways in which the newsletter in question might violate the present New Mexico Code of Professional Responsibility, particularly Rule 2-103 and Rule 2-104(A)(2). Nevertheless, the committee members unanimously considered this newsletter to be a permissible solicitation for new business. Our basis for this conclusion came from constitutional considerations, as expressed in the United States Supreme Court in In re R.M.J., 455 U.S. 191 (1982), along with an expansive reading of Rule 2-104(A)(4) of the present New Mexico Code of Professional Responsibility.
Anticipating whether this newsletter is permissible both constitutionally and under the new rules regarding lawyer advertising in New Mexico, the committee refers the attorney to Rule 7.2 of the newly-adopted rules, effective January 1, 1987. Rule 7.2(a) specifically allows advertising "through written communication not involving personal solicitation." Although "personal solicitation" is not defined in these New Mexico rules, it has been noted that the direct-mail context is not analogous to in-person solicitation, since the likelihood of overreaching and high-pressure sales tactics are not present in a mailing. Spencer v. Honorable Justices of the Supreme Court of Pennsylvania, 579 F. Supp. 880 (E.D. Pa. 1984).
Although the court in Spencer found a blanket prohibition of direct-mail solicitation to be unconstitutional, it went on to hold that the state's proscription of "false or misleading" advertising prohibited the attorney advertising to or advising potential clients that he is an "experienced" pilot or an "experienced" computer programmer, since these characterizations are inherently misleading. Similarly, when Ohio changed its disciplinary rules to allow self-laudatory statements, it still proscribed "subjectively self-laudatory" statements (Ohio DR2-101), pursuant to its interpretation of the ABA Model Rule 7.1 prohibition of "false or misleading communication about the lawyer or the lawyer's services." New Mexico has adopted this rule.
The committee generally approved the format of the newsletter in question, but felt that some of the statements contained in the sample newsletter emphasized the attorney's experience, without objectively stating the basis for such statements. These statements may be misleading.
Finally, note Rule 7.2(b) of the newly-adopted New Mexico Code of Professional Responsibility that requires a copy of any written communication be kept by an attorney responsible for its content for two years after its last dissemination along with a record of when and where it was used.