Can a Texas lawyer mail non-clients a form letter offering to sell will forms with fill-in instructions while disclaiming any attorney-client relationship?

Plain-English summary

The inquiry asked whether a Texas lawyer violates the Code by mailing a form letter to non-clients offering to sell will forms and written advice on how to fill them out, while disclaiming the establishment of any attorney-client relationship.

The Committee concluded the selling of will forms in this manner is not protected advertising but proscribed solicitation. Reviewing the constitutional framework, including Bates v. State Bar of Arizona, In re R.M.J., Ohralik, and In re Primus, it distinguished Primus on the ground that the lawyer here acted with intent to gain a financial benefit. It noted that the letter was acceptable insofar as it urged intestate persons to remedy their intestacy, but not insofar as it offered will forms for sale. Citing Palmer v. Unauthorized Practice Committee, the Committee observed that selling will forms has been held to be the practice of law, and that providing the forms and fill-in instructions would give legal advice, so an attorney-client relationship would arise on acceptance despite the disclaimer, making the disclaimer a violation of DR 6-102's bar on attempting to limit malpractice liability in advance.

The Committee held that the proposed mailing is not a form of solicitation allowed by DR 2-103(A) and violates DR 2-103(D) in two ways: it is likely to reach persons unable to exercise reasonable judgment in employing an attorney, and its disclaimer that no attorney-client relationship is sought is false and misleading under DR 2-103(D) and DR 2-101(A)(1) and (8). Buyers of the forms might believe their estates are fully handled when they may need a more comprehensive instrument or other legal help, and acceptance of the offer would establish the relationship regardless of the disclaimer.

Currency note

This opinion was issued in 1984, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The Disciplinary Rules have since been amended, and Texas never adopted the ABA's Ethics 2000 framework. The current Texas rules are Rule 7.03 (solicitation), Rule 5.05 (unauthorized practice), and Rule 1.08(g) (limiting malpractice liability), with closest ABA analogs Model Rules 7.3, 5.5, and 1.8(h); the constitutional treatment of targeted direct mail has developed since this opinion. Subsequent rule changes 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 mentioned here.

Common questions

Q: Can a Texas lawyer mail non-clients an offer to sell will forms?

A: Per the opinion, no. The Committee concluded the mailing is prohibited solicitation rather than protected advertising, and that it violates DR 2-103(D).

Q: Why did the disclaimer of an attorney-client relationship not help?

A: The Committee concluded that selling the forms and providing fill-in instructions is the practice of law and gives legal advice, so an attorney-client relationship would arise on acceptance despite the disclaimer, and the disclaimer therefore violated DR 6-102's bar on limiting malpractice liability in advance.

Q: What were the two ways the mailing violated DR 2-103(D)?

A: The Committee found, first, that the mailing was likely to reach persons unable to exercise reasonable judgment in employing an attorney, and second, that the disclaimer that no attorney-client relationship was sought was false and misleading under DR 2-103(D) and DR 2-101(A)(1) and (8).

Q: Was anything about the letter acceptable?

A: The Committee said the letter was acceptable to the extent it urged intestate people to remedy their intestacy, but not to the extent it offered will forms for sale.

Background and rules framework

The opinion interprets DR 2-103(A) and DR 2-103(D) of the former Texas Code of Professional Responsibility (permissible solicitation and the limits on written communications to prospective clients), DR 2-101(A)(1) and (8) (false or misleading communications), and DR 6-102 (no advance limitation of malpractice liability), against the First Amendment cases on lawyer advertising and solicitation. The closest current concepts are Texas Rules 7.03, 5.05, and 1.08(g) and Model Rules 7.3, 5.5, and 1.8(h). The analysis turns on the financial-gain motive, the practice-of-law character of selling will forms, and the misleading disclaimer.

Citations and references

Rules of Professional Conduct:

• MR 7.3 (solicitation of clients)
• MR 5.5 (unauthorized practice of law)
• MR 1.8 (limiting malpractice liability; business with clients)
• DR 2-103(A), DR 2-103(D), DR 2-101(A)(1) and (8), DR 6-102, EC 2-2, EC 2-3, EC 2-4, Texas Code of Professional Responsibility

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976)
• In re R.M.J., 455 U.S. 191 (1982); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978); In re Primus, 436 U.S. 412 (1978)
• Palmer v. Unauthorized Practice Comm. of State Bar, 438 S.W.2d 374 (Tex.Civ.App.-Houston 1969, no writ), selling will forms is the practice of law
• Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530 (1980); Koffler v. Joint Bar Ass'n, 51 N.Y.2d 140, 412 N.E.2d 927 (1980); Kentucky Bar Ass'n v. Stuart, 568 S.W.2d 933 (Ky. 1978); Allison v. Louisiana Bar Ass'n, 362 So.2d 489 (La. 1978); People v. Roehl, 655 P.2d 1381 (Colo. 1983)

See also

• TX Ethics Op. 414: Mail Advertising and Personalized Direct-Mail Solicitation
• TX Ethics Op. 420: Mailed Brochure to Named Addressees, Advertising Not Solicitation
• TX Ethics Op. 417: Lawyer Representing and Owning a Collection Agency

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-413/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_413.pdf

Original opinion text

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

QUESTION PRESENTED

Does mailing a form letter by an attorney who is a member of the State Bar of Texas, to persons who have not previously been his clients, offering to sell will forms and giving written advice as to how to fill them out but disclaiming establishment of an attorney-client relationship, violate the Code of Professional Responsibility of the State of Texas?

DISCUSSION

This inquiry requires examination of recent developments in the area of attorney advertising and solicitation. For the reasons discussed below, the Committee is of the opinion that the selling of will forms in the manner described above is not a protected form of advertising but instead is a form of solicitation that is proscribed by the Code of Professional Responsibility.

Disciplinary Rule 2-103 prohibits a lawyer from recommending his employment to non-lawyers who have not sought his advice, except advertising in the public media within the limits of DR 2-101, or in person so long as there is no intimidation or overreaching, or to close friends, relatives and former clients, or if acting on behalf of a bona fide, nonprofit organization. DR 2- 103(D) bars written or other communications to prospective clients for the purpose of obtaining employment if the lawyer knows or should know the person is unable to exercise reasonable judgment in employing a lawyer or has expressed a desire not to receive communications from the lawyer, or if the communication involves coercion or duress or contains any false or misleading information as defined in DR 2-101.

Prior to the 1977 decision of the Supreme Court in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the disciplinary rules prohibited any form of lawyer advertising. In Bates, the Supreme Court held that lawyer publicity is, within limits, constitutionally protected by the First Amendment guarantee of freedom of speech. However, the Bates decision left open the possibility of regulation as to the content of lawyer advertising, citing the permissibility of regulation on commercial speech to protect a state's compelling interest. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976). In Matter of R__M.J __, 455 U.S. 191 (1982), the Supreme Court struck down an absolute prohibition on the mailing of announcement cards to members of the public.

In Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978), the Supreme Court upheld the suspension of an attorney for soliciting the business of an accident victim in her hospital room. The Court was particularly leery of the coercive nature of in-person solicitation. The fact situation here is different, in that the attorney does not personally solicit the business of the letter recipients. However, the possibility that the letter was directed specifically towards nursing home residents could be considered as having this effect.

The Supreme Court considered a form of direct-mail solicitation in In re Primus, 436 U.S. 412 (1978). The Court held that disciplinary action in the Primus case would have violated the First Amendment. However, the situation in Primus dealt with freedom of association and freedom of political expression in the absence of intent to gain pecuniary advantage. The attorney's desire to sell will forms establishes an intent to secure a financial benefit.

The Ethical Considerations of the Code of Professional Responsibility provide some guidelines for scrutiny of attorney conduct. Ethical Considerations 2-2, 2-3, and 2-4 deal with advice to a layman to seek the assistance of counsel and legal education of the lay public in general. The recurrent theme in these Ethical Considerations is that the lawyer should be motivated by a desire to further legal assistance and protection for lay persons, but not by a desire to obtain personal benefit or secure professional employment.

The attorney's letter is acceptable to the extent that it recommends intestate people to remedy their intestacy but not to the extent that it offers will forms for sale. In spite of the disclaimer of establishment of any attorney- client relationship, the sale of will forms has been held by the Court of Civil Appeals of Texas (14th District) to constitute the practice of law. Palmer v. Unauthorized Practice Comm. of State Bar, 438 S.W.2d 374 (Tex.Civ.App.-- Houston 1969, no writ). In addition, the attorney's provision of the will forms and of instructions on filling them out would constitute the giving of legal advice, and therefore an attorney-client relationship would naturally arise upon the recipient's acceptance of the attorney's offer. In view of the establishment of the attorney-client relationship, the disclaimer would violate DR 6-102 which prohibits any attempt by an attorney to exonerate himself in advance from liability to his clients for his malpractice.

Texas courts have not considered the permissibility of direct-mail solicitation. In Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530 (1980), the United States Supreme Court considered whether bill inserts on public policy issues could be banned outright and held they could not since the recipient "may escape exposure to objectionable material simply by transferring the bill insert from envelope to wastebasket." Id. at 542. However, although direct-mail solicitation may not be absolutely prohibited, the content of the communication may be regulated. Koffler v. Joint Bar Ass'n, 51 N.Y.2d 140, 412 N.E.2d 927 (1980); Kentucky Bar Ass'n v. Stuart, 568 S.W.2d 933 (Ky. 1978). The Supreme Court of Louisiana has held that attorneys' mail solicitation could be regulated where the motive was financial gain. Allison v. Louisiana Bar Ass'n, 362 So.2d 489 (La. 1978). A recent Colorado Supreme Court decision held that publicly-communicated advertising for sale of legal forms was unethical. People v. Roehl, 655 P.2d 1381 (Colo. 1983) (in which the court stated, "The practice of law, in short, is not a business involving the marketing of legal stationery").

The proposed mailing is not one of the forms of solicitation allowed by DR 2- 103(A) and it violates DR 2-103(D) in two ways. First, it likely will reach persons who are unable to exercise reasonable judgment in employing an attorney. Second, the disclaimer that no attorney-client relationship is sought is false and misleading in violation of DR's 2-103(D) and 2-101(A)(1) and (8). Persons purchasing the will forms and instructions are likely to believe that their estates will be fully taken care of when in reality they may need a much more comprehensive instrument or different, additional legal assistance. Furthermore, a recipient's acceptance of the attorney's offer to sell the will forms and reliance upon the attorney's instructions would establish an attorney-client relationship, notwithstanding the disclaimer in the attorney's letter; the disclaimer therefore violates DR 6-102.

CONCLUSION

The proposed mailing is not one of the forms of solicitation allowed by DR 2- 103(A) and it violates DR 2-103(D) in two ways. First, it likely will reach persons who are unable to exercise reasonable judgment in employing an attorney. Second, the disclaimer that no attorney-client relationship is sought is false and misleading in violation of DR's 2-103(D) and 2-101(A)(1) and (8). Persons purchasing the will forms and instructions are likely to believe that their estates will be fully taken care of when in reality they may need a much more comprehensive instrument or different, additional legal assistance. Furthermore, a recipient's acceptance of the attorney's offer to sell the will forms and reliance upon the attorney's instructions would establish an attorney-client relationship, notwithstanding the disclaimer in the attorney's letter; the disclaimer therefore violates DR 6-102.

Tex. Comm. On Professional Ethics, Op. 413 (1984)