Can an attorney send direct-mail letters to every homeowner facing foreclosure, and can an attorney mail CPAs asking them to refer tax clients?

Plain-English summary

The opinion addressed two direct-mail questions: whether an attorney could mail every defaulting mortgagor whose home is advertised for foreclosure, and whether an attorney could mail CPAs asking them to recommend the attorney's services as a tax advisor to their clients. On the first question, the opinion applied Disciplinary Rule 2-101(M), which permits direct mail if its contents comply with all the requirements applicable to print media and do not engage in solicitation. It cited Kentucky Bar Association v. Stuart, 568 S.W.2d 933 (Ky. 1978), where the Kentucky Supreme Court declined to discipline attorneys for mailing letters to real estate brokers stating prices, turnaround time, and qualifications for routine real estate legal services, reasoning that a letter is no more likely to involve overreaching or deception than other advertising forms, and In re R.M.J., 455 U.S. 191 (1982), where the U.S. Supreme Court upheld a lawyer's right to mail professional announcement cards to non-clients, holding that states may regulate actually or inherently misleading lawyer advertising but no more extensively than reasonably necessary. The opinion reasoned that direct mail involves no appreciable invasion of privacy and may be less threatening than aggressive multimedia campaigns, since the recipient can scrutinize the letter, deliberate, and compare without time pressure or a lawyer's in-person solicitation. It found no impropriety in mailing every defaulting mortgagor, but found the specific letter at issue, which stated the attorney had experience "to provide immediate financial relief for persons such as yourself to stop foreclosure proceedings," misleading and in violation of Disciplinary Rule 2-101(A).

On the second question, the opinion applied In re Greene, 54 N.Y.2d 118, 429 N.E.2d 390 (1981), in which the New York courts held that an attorney who mailed flyers to real estate brokers requesting referrals for real-property legal services engaged in prohibited direct-mail solicitation of clients through third persons, not constitutionally protected. Applying that holding, the opinion concluded that direct mail to CPAs requesting them to recommend the attorney's services as a tax advisor constitutes improper third-party solicitation.

Currency note

Vacated. The Board of Professional Responsibility vacated Formal Ethics Opinion 84-F-78 on December 10, 2021 due to changes in the laws or rules. This opinion was also issued in 1984, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. A vacated opinion has no continuing force and is not the Board's current guidance. It is reproduced and summarized here only as a historical research record. Do not rely on it as current; verify the current rules on advertising and solicitation under RPC 7.1 through 7.3 before acting.

Common questions

Q: Can a lawyer send a direct-mail letter to every homeowner facing foreclosure?

A: This opinion found no general impropriety in doing so, but cautioned that the specific letter's content cannot be misleading; a claim of experience providing "immediate financial relief" to stop foreclosure was found misleading and improper.

Q: Can a lawyer mail accountants asking them to refer their clients for legal services?

A: No. The opinion held that direct mail to CPAs requesting referrals of tax-advisory clients constitutes improper third-party solicitation.

Background and rules framework

The opinion applied Disciplinary Rule 2-101(M) (direct mail standards) and Disciplinary Rule 2-101(A) (no false or misleading communications) of the Code of Professional Responsibility. The modern correlates are Model Rule 7.1 (communications concerning a lawyer's services) and Model Rule 7.3 (solicitation of clients), cited here as navigational cross-references rather than rules the opinion itself applied; this opinion has since been vacated, so current RPC 7.1 through 7.3 control.

Citations and references

Cases:

• Kentucky Bar Association v. Stuart, 568 S.W.2d 933 (Ky. 1978), direct mail to real estate brokers is not in-person solicitation
• In re R.M.J., 455 U.S. 191 (1982), states may regulate misleading lawyer advertising but no more extensively than necessary
• In re Greene, 54 N.Y.2d 118, 429 N.E.2d 390 (1981), direct-mail solicitation of clients through third-person referral requests is prohibited

See also

• CA Ethics Op. 1995-142: Direct-Mail Marketing of Legal Services to Arrestees ("Jail Mail") Under Rule 1-400
• ISBA Op. 92-17: Direct Mail Solicitations

Source

• Landing page: https://www.tbpr.org/ethic_opinions/84-f-78

Original opinion text

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

84-F-78 - Vacated*

*Vacated by the Board of Professional Responsibility on December 10, 2021 due to changes in the laws or rules.

FORMAL ETHICS OPINION 84-F-78

(1) May an attorney engage in direct mail communication which is mailed to every defaulting mortgager whose home is advertised for foreclosure;

AND

(2) May an attorney engage in direct mail communication to C.P.A.'s requesting them to recommend his service as a tax advisor to their clients.

(1) Disciplinary Rule 2-101(M) of the Code provides, in part, as follows:

... direct mail ... may be used, but only if the contents comply with all requirements that pertain to the print media, ... and do not engage in solicitation.

In Kentucky Bar Association v. Stuart, 568 S.W. 2d 933 (Ky. 1978), the Kentucky Supreme Court declined to discipline attorneys for mailing letters to real estate brokers. The letters stated the prices charged for routine legal services in real estate transactions, the time in which services would be rendered, and the qualifications of those who would perform the services. The Court found that the letters did not constitute in-person solicitation any more than other forms of advertising. The Court reasoned that the fact that the advertisement was in the form of a letter did not increase the likelihood of overreaching or deceptive practices, potential dangers in all advertising.

In January, 1982, the United States Supreme Court in In Re: R.M.J., 102 S. Ct. 929 (1982), upheld a lawyer's right to mail professional announcement cards to non-clients, holding that states may regulate lawyer advertising that is actually or inherently misleading, but no more extensively than reasonably necessary to further substantial interests.

Direct mail advertisements involve no appreciable invasion of privacy and may, in fact, be less threatening or intrusive than aggressive multimedia advertising campaigns. The public can scrutinize letters carefully, deliberate and make critical comparisons free from pressures of time and without being overpowered by the personality of a lawyer who solicits business personally.

There is no impropriety in engaging in direct mail advertising which is mailed to every defaulting mortgager whose home is advertised for foreclosure.

The letter, in this instance, states:

I have experience ... to provide immediate financial relief for persons such as yourself to stop foreclosure proceedings.

The above language is misleading and in violation of Disciplinary Rule 2-101(A).

(2) The New York Supreme Court, Appellate Division in the case of In Re: Greene, 54 N.Y. 2d 118, 429 N.E. 2d 390, 444 N.Y.S. 2d 883 (1981), held that an attorney who mailed one thousand flyers to real estate brokers in which he requested the brokers to refer individuals to him for legal services in the sale or purchase of real property constituted direct mail solicitation of clients through third person which was prohibited and not constitutionally protected.

Direct mail communication to C.P.A.'s requesting them to recommend the attorney's services as a tax advisor constitutes third party solicitation and is improper.

This 17th day of October , 1984.

ETHICS COMMITTEE:

O. B. Hofstetter, Jr.

Jerry Colley

William R. Willis

APPROVED AND ADOPTED BY THE BOARD