Can a Texas lawyer advertise legal services by mail, and can the lawyer send personalized direct-mail letters soliciting business from non-clients?

Plain-English summary

The inquiry asked whether an attorney may send advertisements of his legal services through the mail, and whether he may send non-clients personalized direct-mail letters soliciting legal business.

The Committee drew a line between two kinds of mail. An advertisement or form letter not personally addressed to the recipient is an advertising communication under DR 2-101, and EC 2-10 (as amended in 1982) defines printed media to include mail, so such a mailing is permissible subject to the DR 2-101 rules against false or misleading communications. A direct-mail campaign of letters personalized for each recipient, by contrast, is a solicitation communication. Relying on Bates v. State Bar of Arizona, In re R.M.J., and especially Ohralik v. Ohio State Bar Association, the Committee reasoned that an individually addressed solicitation letter is sufficiently like in-person solicitation to fall under DR 2-103(D).

Applying DR 2-103(D)(1), the Committee observed that a lawyer running a personalized direct-mail campaign would in most circumstances violate the rule, because the lawyer normally should know that some recipients could not exercise reasonable judgment in hiring a lawyer even if he could not identify which ones, a risk especially acute for mailings aimed at accident victims, the elderly, or people with a particular disability. The Committee concluded, 7-0, that mass mailings of nonpersonalized advertisements are permissible as public-media advertising, while personalized direct-mail solicitation of non-clients is permitted only if the lawyer takes all necessary steps to keep it away from anyone who could not exercise reasonable judgment in hiring a lawyer or who has asked not to receive such mail, the letter involves no coercion, duress, or harassment, and the advertising limits are also met.

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 on advertising and solicitation are in Part VII (Rules 7.02-7.03 and 7.05), with closest ABA analogs Model Rules 7.2 and 7.3; the constitutional and rule 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 advertise by mass mailing?

A: Per the opinion, yes. The Committee concluded a mass mailing of advertisements or nonpersonalized letters is advertising in the public media, permissible subject to the DR 2-101 advertising restrictions.

Q: Are personalized solicitation letters to non-clients treated differently?

A: Yes. The Committee concluded a campaign of letters personalized for each recipient is solicitation, not mere advertising, and is governed by DR 2-103(D) because it is sufficiently like in-person solicitation.

Q: Why did the Committee see most personalized direct-mail campaigns as problematic?

A: Under DR 2-103(D)(1), the Committee reasoned the lawyer normally should know that some recipients could not exercise reasonable judgment in hiring a lawyer, even without knowing which ones, a risk it found especially likely for mailings targeting accident victims, the elderly, or people with a disability.

Q: When is personalized direct-mail solicitation allowed?

A: The Committee permitted it only if the lawyer takes all necessary steps to keep the mailing away from anyone who could not exercise reasonable judgment in hiring a lawyer or who has asked not to be contacted, the letter has no coercion, duress, or harassment, and the advertising limits are met.

Background and rules framework

The opinion interprets DR 2-101 of the former Texas Code of Professional Responsibility (general advertising restrictions) and DR 2-103(D) and DR 2-103(D)(1) (written solicitation of prospective clients), against the First Amendment framework of Bates, In re R.M.J., and Ohralik. The closest current concepts are Texas Rules 7.02-7.03 and 7.05 and Model Rules 7.2 and 7.3. The analysis turns on whether the mailing is perceived as mass advertising or as individually targeted solicitation.

Citations and references

Rules of Professional Conduct:

• MR 7.2 (advertising)
• MR 7.3 (solicitation of clients)
• DR 2-101, DR 2-103(D), DR 2-103(D)(1), EC 2-10, Texas Code of Professional Responsibility

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977), lawyer advertising as protected commercial speech
• In re R.M.J., 455 U.S. 191 (1982), limits on regulating lawyer mailings
• Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978), in-person solicitation may be restricted

See also

• TX Ethics Op. 420: Mailed Brochure to Named Addressees, Advertising Not Solicitation
• TX Ethics Op. 427: Paid Listings on Telephone Book Covers and City Maps
• TX Ethics Op. 413: Mailing a Form Letter Offering Will Forms for Sale

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-414/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_414.pdf

Original opinion text

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

QUESTION PRESENTED

Under the Texas Code of Professional Responsibility, may an attorney send advertisements of his legal services through the mail?
Under the Texas Code of Professional Responsibility, may an attorney send to non-clients personalized direct-mail letters soliciting legal business?

DISCUSSION

An advertisement or form letter that is not personally addressed to the individual recipient is an advertising communication subject to Disciplinary Rule ("DR") 2-101. Ethical Consideration ("EC") 2-10 (as amended in 1982) defines "advertising media" to include "printed media" and defines "printed media" to include "mail." An advertisement for legal services sent through the mail must, like any other advertisement for legal services, comply with the requirements of DR 2-101, which are intended to prevent false or misleading public communications about the lawyer or the lawyer's services.

A lawyer's direct-mail campaign to obtain employment as a lawyer that involves letters that are personalized for each particular recipient is not, in the view of the Professional Ethics Committee, an advertisement. Instead such mailing is a solicitation communication. Although the free speech guarantees of the First and Fourteenth Amendments to the United States Constitution sharply limit the degree to which attorneys' advertising may be restricted or prohibited by state authorities, see Bates v. State Bar of Arizona, 433 U.S. 350 (1977) and In The Matter of R__ M. J __, 455 U.S. 191 (1982), the Supreme Court of the United States has recognized that the public interest permits substantial limitations and prohibitions with respect to in-person solicitation. See Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978). A direct mailing that is in the form of letters from a lawyer individually addressed to each specific recipient is, in the view of the Committee, sufficiently like oral in-person solicitation to have a similar status for purposes of applying the free speech guarantees of the United States Constitution. Accordingly, such written communications would properly be subject to the requirements of DR 2-103(D), which provides as follows: "(D) A lawyer shall not initiate contact with, or send a written communication to, a prospective client for the purpose of obtaining professional employment if: (1) The lawyer knows or reasonably should know the person could not exercise reasonable judgment in employing a lawyer; or (2) The person has made known to the lawyer a desire not to receive communications from the lawyer; or (3) The communication involves coercion, duress, or harassment; or (4) The communication contains any information prohibited by DR 2-101."

Thus, an attorney seeking to use personalized direct mail to obtain professional employment must comply with the restrictions on advertising communications as set forth in DR 2-101 and in addition must take reasonable steps to ensure that the communication does not go to a person that the lawyer knows or should know could not exercise reasonable judgment in employing a lawyer, that the mailing does not go to a person who has made known a desire not to receive the communication, and that the communication does not involve coercion, duress or harassment.

With respect to the requirement imposed by DR 2-103(D)(1), the Committee believes that a lawyer would in most circumstances violate this requirement by carrying out a personalized direct-mail campaign because the lawyer normally should know that some of the recipients would be persons not capable of exercising reasonable judgment in employing a lawyer, even though the lawyer could not reasonably know which of the recipients would be in that category. This problem would be particularly likely to exist if the category of recipients of the personalized mailing were persons recently involved in an accident, persons of advanced years, or persons with some particular disability. Accordingly, unless the lawyer could reasonably ensure that no recipient of the proposed personalized direct-mail communication would be a person that could not exercise reasonable judgment in employing a lawyer, a lawyer could not under the Texas Code of Professional Responsibility ethically use a personalized direct-mail campaign. Particularly in view of the decision of the United States Supreme Court in Ohralik v. Ohio State Bar Association, 436 U.S. 447 (1978), the Committee believes that such a limitation on personalized direct-mail solicitation is not inconsistent with the free speech guarantees of the United States Constitution as presently interpreted by the United States Supreme Court.

A mass mailing by a lawyer of advertisements or nonpersonalized letters constitutes a form of advertising by means of the public media and is permissible subject to the restrictions set forth in DR 2-101 that are generally applicable to advertising by lawyers. A direct-mail campaign by a lawyer involving personalized letters to non-clients is subject to the restrictions of the Texas Code of Professional Responsibility on solicitation rather than simply to the restrictions on advertising. Accordingly, solicitation by means of direct mail of personalized letters is permitted under the Texas Code of Professional Responsibility and constitutional guarantees as presently interpreted by the United States Supreme Court only if (1) the lawyer takes all necessary steps to prevent the personalized direct-mail solicitation from going to any person that could not exercise reasonable judgment in employing a lawyer, (2) the lawyer takes all necessary steps to prevent mailings to persons who have made known a desire not to receive such mailings, (3) the letter does not involve coercion, duress or harassment, and (4) the limitations also applicable to advertising are complied with. (7-0.)

CONCLUSION

A mass mailing by a lawyer of advertisements or nonpersonalized letters constitutes a form of advertising by means of the public media and is permissible subject to the restrictions set forth in DR 2-101 that are generally applicable to advertising by lawyers. A direct-mail campaign by a lawyer involving personalized letters to non-clients is subject to the restrictions of the Texas Code of Professional Responsibility on solicitation rather than simply to the restrictions on advertising. Accordingly, solicitation by means of direct mail of personalized letters is permitted under the Texas Code of Professional Responsibility and constitutional guarantees as presently interpreted by the United States Supreme Court only if (1) the lawyer takes all necessary steps to prevent the personalized direct-mail solicitation from going to any person that could not exercise reasonable judgment in employing a lawyer, (2) the lawyer takes all necessary steps to prevent mailings to persons who have made known a desire not to receive such mailings, (3) the letter does not involve coercion, duress or harassment, and (4) the limitations also applicable to advertising are complied with. (7-0.)

Tex. Comm. On Professional Ethics, Op. 414 (1984)