Can I mail a non-personalized letter and videotape to an injured person I found in a newspaper article to solicit them as a client?
Texas Ethics Opinion 521: Soliciting a Prospective Client by Letter and Videotape
Short answer: The Committee concluded that mailing a non-personalized letter and videotape to a prospective client whose identity came from a newspaper article, to obtain employment, is not prohibited if it satisfies the requirements of Rules 7.02, 7.04, and 7.05; the videotape format itself is not barred.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Texas Disciplinary Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
A Texas lawyer wanted to mail a written communication, a letter accompanied by a videotape, to a prospective client who had been injured and whose identity the lawyer found through a newspaper article. The purpose of the mailing was to obtain professional employment. The letter introduced the lawyer's services and directed the recipient to view the videotape for further information about representation, the lawyer's qualifications, and general statements about damages. The opinion assumed the letter and videotape were not personalized for the individual recipient.
The Committee framed the analysis under the Part VII advertising and solicitation rules: Rule 7.02(a) (no false or misleading communication about a lawyer's qualifications or services), Rule 7.03 (prohibited in-person and telephone solicitations), and Rule 7.05 (requirements for written communications sent to obtain employment). It concluded that a videotape used to obtain employment is subject to the same scrutiny as any other communication, and that whatever means are used, statements should be truthful and non-deceptive. The Committee noted it does not opine on the actual content of such communications, which Rule 7.07 routes to the Lawyer Advertisement and Solicitation Review Committee.
Assuming the letter and videotape were general and not customized, the Committee found them comparable to the mass-produced form letter and brochure approved in Opinion 420, and held the videotape format is not per se barred. Citing Shapero v. Kentucky Bar Association, which gives non-personalized direct-mail solicitation constitutional protection as commercial speech (subject to the state's authority to regulate content to prevent false or misleading communications), and Opinion 470, the Committee concluded that if the requirements of Rules 7.02, 7.04, and 7.05 are satisfied, a non-customized letter and videotape mailed to a prospective client identified through a newspaper article is not prohibited. The videotape's contents must meet those rules' standards to have the benefit of constitutional protection as commercial speech.
Currency note
This opinion was issued in 1997, under the Texas Disciplinary Rules of Professional Conduct that took effect January 1, 1990. Texas did not adopt the ABA's Ethics 2000 revisions; its rules have been amended only piecemeal since (including the March 1, 2005 amendment to the fee rule, Rule 1.04, and the comprehensive 2021 revisions adopted by Texas Supreme Court order). The advertising and solicitation rules in Part VII (including Rules 7.02 through 7.05) were among the rules later revised. Subsequent rule amendments 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 I mail a videotape to solicit a prospective client?
A: The Committee concluded the videotape format is not per se barred. A non-customized letter and videotape mailed to obtain employment is not prohibited if it satisfies Rules 7.02, 7.04, and 7.05, the same standards that apply to other forms of lawyer communication.
Q: Does it matter that I found the person through a newspaper article?
A: The opinion concluded it did not bar the mailing. Relying on Shapero v. Kentucky Bar Association, the Committee treated non-personalized direct-mail solicitation as constitutionally protected commercial speech, subject to the state's authority to regulate content against false or misleading statements.
Q: Will the Committee tell me whether my specific letter or video is acceptable?
A: No. The Committee stated it does not render advisory opinions on the actual content of communications used to obtain employment; Rule 7.07 assigns review of public advertisements and written solicitations to the Lawyer Advertisement and Solicitation Review Committee.
Background and rules framework
The opinion interprets the Texas Part VII advertising and solicitation rules: Rule 7.02 (false or misleading communications; ABA Model Rule 7.1), Rule 7.03 (prohibited solicitations; Model Rule 7.3), Rule 7.04 (advertising requirements; related to Model Rule 7.2), Rule 7.05 (written communications to obtain employment), and Rule 7.07 (review of advertisements and solicitations). The constitutional backdrop is Shapero v. Kentucky Bar Association, which protects non-personalized direct-mail solicitation as commercial speech.
Citations and references
Rules of Professional Conduct:
- MR 7.1 (communications concerning a lawyer's services)
- MR 7.2 (advertising)
- MR 7.3 (solicitation of clients)
- Texas Disciplinary Rules 7.02, 7.03, 7.04, 7.05, 7.07
Cases:
- Shapero v. Kentucky Bar Association, 486 U.S. 466, 108 S. Ct. 1916, 100 L.Ed. 2d 475 (1988), non-personalized direct-mail solicitation protected as commercial speech
Other opinions cited:
- Tex. Ethics Op. 420 (47 Tex. Bar J. 1383, Dec. 1984): mass-produced, non-individualized brochures mailed to named recipients are permissible
- Tex. Ethics Op. 470 (55 Tex. Bar J. 287, March 1992): mailing a letter or firm brochure to a potential client known to need particular services is permissible
See also
- TX Ethics Op. 524: Accepting a Referral From a Provider Who Solicited the Patient
- TX Ethics Op. 529: Trade Names and Firm Names Implying a Quality
- TX Ethics Op. 550: Lawyer Use of "Doctor" and "J.D." Titles
Source
- Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-521/
- Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_521.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative. The source text encoded curly quotation marks and apostrophes with unreadable characters; these have been restored as standard quotation marks and apostrophes.
QUESTION PRESENTED
Whether a Texas attorney violates the Texas Disciplinary Rules of Professional Conduct by mailing a written communication in the form of a letter accompanied by a videotape to a prospective client whose identity is discovered through a newspaper article?
STATEMENT OF FACTS
A Texas lawyer intends to mail a written communication in the form of a letter accompanied by a videotape to a prospective client who was injured and whose identity was discovered through a newspaper article.
The purpose of the mailing is to obtain professional employment for the lawyer.
The letter serves as an introduction to the lawyer's services and directs the prospective client to view the videotape for further information regarding legal representation, the lawyer's qualifications, and general statements regarding damages. This opinion assumes the letter and videotape were not personalized for the individual recipient.
DISCUSSION
Rule 7.02(a) provides in relevant part that, "a lawyer shall not make a false or misleading communication about the qualifications or the services of any lawyer or firm." Rule 7.03 addresses prohibited solicitations and payments including, but not limited to, solicitations in person or by telephone contact "when profit for the lawyer is a significant motive and the solicitation concerns matters arising out of a particular occurrence, event, or series of occurrences or events." See paragraph one of the comment to Rule 7.03. Rule 7.05 provides in pertinent part:
(a) A lawyer shall not send or deliver ... a written communication to a prospective client for the purpose of obtaining professional employment if;(1) the communication involves coercion, duress, fraud, overreaching, intimidation, undue influence, or harassment,
(2) the communication contains information prohibited by Rule 7.02 or fails to satisfy each of the requirements of Rule 7.04(a) through (c), and (h) through (o) that would be applicable to the communication if it were an advertisement in the public media, or
(3) the communication contains a false, fraudulent, misleading, deceptive, or unfair statement or claim.
Rule 7.05(b) through (e) further states the necessary requirements which a written solicitation communication used to obtain professional employment must satisfy. The exceptions contained in Rule 7.05(e) 1-4 do not apply in the stated fact situation.
The use of a videotape by a lawyer to obtain professional employment must be subject to the same scrutiny as other forms of communication utilized to obtain professional employment. As noted in paragraph two of the comment to Rule 7.02, "[w]hatever means are used to make known a lawyer's services, statements about them should be truthful and non-deceptive."
This committee does not render advisory opinions regarding the actual content of communications utilized by lawyers to obtain professional employment. See Rule 7.07, which addresses review of public advertisements and written solicitations by the Lawyer Advertisement and Solicitation Review Committee.
Assuming, but without deciding, the letter and videotape are general in nature and not customized for the prospective client, the use of the letter and videotape is comparable with the use of the mass-produced form letter and accompanying brochure described in Ethics Opinion 420 (47 Tex. Bar J., p. 1383 (Dec. 1984)), which held in part that "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 rules pertaining to advertising by lawyers. The videotape format per se is not, in the opinion of this committee, barred from use as a means to obtain professional employment.
Since the decision in Shapero v. Kentucky Bar Association, 486 U.S. 466, 108 S. Ct. 1916, 100 L.Ed. 2d 475 (1988), direct mail solicitation in the form of a non-personalized form letter by attorneys is afforded constitutional protection as commercial speech. Still, the state retains its authority to regulate the content of such solicitation to protect the public from false or misleading communications concerning a lawyer's services. See Ethics Opinion 470 (55 Tex. Bar J., p. 287 (March 1992)), holding permissible under the rules the mailing of "a letter or firm brochure to a potential client known to be in need of particular services," subject to the lawyer's compliance with the rules regulating a lawyer's communication with a prospective client. If the requirements of Rules 7.02, 7.04, and 7.05 are satisfied, a communication in the form of a non-customized videotape and letter to a prospective client whose identity was discovered through a newspaper article for the purpose of obtaining professional employment is not prohibited under the rules. As long as the attorney satisfies the standards stated in each of those rules, the mailing of the letter and videotape are not prohibited in the opinion of this committee.
CONCLUSION
Rules 7.02, 7.04, and 7.05 do not expressly prohibit communication being disseminated in the form of a non-personalized letter and non-personalized videotape mailed to a prospective client whose identity was discovered through a newspaper article for the purpose of obtaining professional employment. The contents of the videotape must meet the standards set forth in Rules 7.02, 7.04, and 7.05 to have the benefit of constitutional protection as commercial speech.
Tex. Comm. On Professional Ethics, Op. 521 (1997)