Does mailing a lawyer's obviously mass-produced brochure to named addressees count as direct solicitation or as ordinary advertising?

Plain-English summary

The inquiry asked whether the Code's requirements for written solicitation communications apply to mailing copies of an attorney's printed brochure about his legal services to named addressees.

Drawing on Opinions 413 and 414, which addressed direct-mail solicitation, the Committee noted that Opinion 414 had held a mass mailing of advertisements or nonpersonalized letters to be advertising in the public media, permissible subject to the DR 2-101 advertising restrictions. The Committee concluded that a printed brochure obviously prepared for distribution to many recipients does not become a solicitation communication, governed by the stricter DR 2-103(D), merely because it is mailed to named addressees. The factor that distinguishes advertising from a written solicitation under DR 2-103(D) is whether the average person in the receiving group would perceive the communication as addressed to them personally or as mass produced for distribution to many.

By an 8-0 vote, the Committee held that mass-produced, non-individualized brochures mailed to named individual recipients are permissible under the Code subject to the DR 2-101 advertising requirements, and are not subject to the DR 2-103(D) requirements for written solicitation communications.

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. 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 Treat this page as historical context, not current guidance.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: Is a lawyer's brochure mailed to named people treated as solicitation?

A: Per the opinion, no. The Committee concluded an obviously mass-produced brochure does not become a solicitation communication just because it is mailed to named addressees; it remains advertising under DR 2-101.

Q: What distinguishes advertising from written solicitation under DR 2-103(D)?

A: The Committee identified the dividing factor as whether the average person in the receiving group would perceive the communication as personally addressed to them, or instead as mass produced for distribution to many persons.

Q: What rules did the brochure have to satisfy?

A: The Committee held the brochure had to comply with the DR 2-101 advertising requirements, and was not subject to the DR 2-103(D) requirements applicable to written solicitation communications.

Background and rules framework

The opinion interprets DR 2-101 of the former Texas Code of Professional Responsibility (general advertising requirements) and DR 2-103(D) (written solicitation communications), distinguishing the two by the recipient's perception of the communication. 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 an average recipient would perceive the brochure as personally addressed or as mass produced.

Citations and references

Rules of Professional Conduct:

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

Other opinions cited:

• Texas Professional Ethics Committee Opinions 413 and 414: direct-mail solicitation; a mass mailing of nonpersonalized letters is advertising in the public media

See also

• TX Ethics Op. 427: Paid Listings on Telephone Book Covers and City Maps
• TX Ethics Op. 425: Lawyer's Educational Newspaper Column on Taxation
• TX Ethics Op. 424: Advertising a Former Military-Attorney Title

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-420/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_420.pdf

Original opinion text

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

QUESTION PRESENTED

Do the requirements of the Texas Code of Professional Responsibility that govern written solicitation communications apply to the mailing to named addressees of copies of an attorney's printed brochure concerning his legal services?

DISCUSSION

Texas Professional Ethics Committee Opinions 413 and 414 discuss limitations required by the Texas Code of Professional Responsibility with respect to direct-mail solicitation by lawyers. Opinion 414 holds in part that "[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."

In the opinion of the Committee, a printed brochure that is obviously prepared for distribution to a large number of recipients does not become a solicitation communication subject to the stricter rules applicable to solicitation communications merely because the brochure is mailed to named addressees. Such personalization in the mailing of an obviously impersonal communication does not involve the problems that may arise in the case of written solicitation communications that are subject to the requirements of Disciplinary Rule ("DR") 2-103(D). The fundamental factor that distinguishes an advertisement from a written solicitation communication subject to DR 2-103(D) is that an average person in the group receiving an advertisement would readily perceive that the communication was not addressed to such person personally but was instead mass produced for distribution to many persons.

Printed brochures that are obviously mass produced and not individualized communications directed to specific recipients and that are mailed to named individual recipients are permissible under the Texas Code of Professional Responsibility subject to compliance with the requirements set forth in DR 2-101 that are generally applicable to advertising by lawyers. Such advertisements are not subject to the requirements of DR 2-103(D) that are applicable to written solicitation communications. (8-0).

CONCLUSION

Printed brochures that are obviously mass produced and not individualized communications directed to specific recipients and that are mailed to named individual recipients are permissible under the Texas Code of Professional Responsibility subject to compliance with the requirements set forth in DR 2-101 that are generally applicable to advertising by lawyers. Such advertisements are not subject to the requirements of DR 2-103(D) that are applicable to written solicitation communications. (8-0).

Tex. Comm. On Professional Ethics, Op. 420 (1984)