Do a law firm's newsletters, legal alerts, seminar brochures, logo giveaways, and website have to carry an 'Advertising Material' label under the lawyer-solicitation rule?

Plain-English summary

Opinion 02-02 addressed how the then-recent amendment to Utah Rule of Professional Conduct 7.3(c) affects a law firm's newsletters and "alerts," brochures provided at public seminars, promotional items, and website information. Rule 7.3 required that a written communication soliciting professional employment from a prospective client, where the lawyer has no family relationship, prior or current professional relationship, or close personal friendship, prominently include the words "Advertising Material" on the outside envelope and at the beginning of the communication. The rule excluded advertising through public media (directories, newspapers, outdoor advertising, radio, or television).

Drawing on its earlier Opinion 99-04, the Committee treated a "solicitation" as a communication the lawyer initiates about the lawyer's availability to provide or accept professional employment. It concluded that if a newsletter, alert, or brochure encourages the recipient to engage the firm or contact it for further information, extols the firm's expertise, or otherwise offers legal services, the item is a solicitation. As such, unless sent to a current or prior client or to someone with whom a firm lawyer has a familial relationship or close personal friendship, it must carry the "Advertising Material" legend.

The Committee distinguished other formats. The firm's website is not a written communication "sent" from the firm to anyone; a visit to obtain information is either advertisement through public media or analogous to telephoning the firm, so no legend is required. An email directed to an individual's address, by contrast, is treated like a regular mailing and must contain the legend at the beginning of the message. Promotional items bearing the firm's logo (pens, flashlights, golf balls) are not written communications soliciting employment, because the logo does not extol expertise or request employment, so they need not carry the legend.

In practice

Under this opinion, and under Rule 7.3 as it stood after the amendment effective April 1, 2001 (before the Utah Supreme Court's 2005 revisions to the Rules of Professional Conduct), the trigger for the "Advertising Material" legend is whether a written item solicits professional employment from a prospective client outside the family, professional, and close-friendship categories. The opinion holds that solicitation-style newsletters, alerts, and brochures so directed require the legend, that individually addressed email requires it, and that the firm's website and logo giveaways do not. The opinion expressly declined to decide whether the legend must appear in an email's subject or "re" line.

Common questions

Q: Does every law firm newsletter need an "Advertising Material" label?

A: No. The opinion concluded the legend is required only when the newsletter constitutes a solicitation of professional employment to a prospective client outside the family, professional, or close-friendship categories; a newsletter not designed as a solicitation does not need it.

Q: Does a firm website have to display "Advertising Material"?

A: No. The opinion held the website is not a written communication "sent" to anyone and is either advertisement through public media or analogous to a person telephoning the firm, so Rule 7.3(c) does not require the legend on it.

Q: What about emailed alerts and logo giveaways like pens or golf balls?

A: An individually addressed email is treated like a regular mailing and must carry the legend at the beginning; logo items are not communications soliciting employment and need not carry it.

Background and rules framework

The opinion interpreted Utah Rule of Professional Conduct 7.3 (direct contact with prospective clients; solicitation, Model Rule 7.3), focusing on subsection (c) (now (a)) as amended effective April 1, 2001, which required the "Advertising Material" legend on written solicitations to prospective clients lacking a family, professional, or close-personal relationship. The analysis turned on the definition of "solicitation" from Utah Ethics Advisory Opinion 99-04 and on whether each format (mailing, email, website, promotional item) is a written communication "sent" to solicit employment.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.3 / Utah Rule 7.3(c) (solicitation; "Advertising Material" legend)

Other opinions cited:

• Utah Ethics Advisory Op. 99-04, 1999 WL 608212: definition of "solicitation"
• Utah Ethics Advisory Op. 97-10, 1997 WL 705482: website information and the legend

See also

• ABA Formal Op. 501: Solicitation Under Rule 7.3
• ABA Formal Op. 10-457: Lawyer Websites
• Utah Ethics Op. 13-02: Paying for Referrals and Joint Marketing
• Utah Ethics Op. 00-02: "Also Admitted" Letterhead While Inactive

Source

• Landing page: https://www.utahbar.org/ethics-opinions/2002-02/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2022/12/2002-02.pdf

Original opinion text

Reproduced from the official source for research purposes. The two-column PDF has been reassembled into reading order by paragraph, and obvious text-extraction artifacts (glued footnote markers, broken words) have been corrected; the linked source is authoritative.

Utah Ethics Opinions 2002. 02-02. USB EAOC Opinion No. 02-02

UTAH STATE BAR Ethics Advisory Opinion Committee

Opinion No. 02-02 Issued February 11, 2002

¶1 Issue: To what extent does the recent amendment to Utah Rules of Professional Conduct 7.3(c) affect a lawyer's or law firm's newsletters and "alerts" to clients and prospective clients, brochures provided at public seminars, promotional items provided at seminars and other events, and web-site information?

¶2 Facts: A law firm (fn1) prepares and mails, or e-mails, newsletters to clients and, in certain instances, to prospective clients with whom attorneys at the firm have no prior or current business, familial or close personal relationship. The newsletter and other firm information is also posted on the firm's web-site. The law firm also sends notices or "alerts" on certain areas of the law to clients and prospective clients who may be interested in those areas. The law firm also on occasion, especially with sponsorship of activities such as seminars, sets up a booth or other location where various materials, such as general brochures about the law firms are made available to attendees of the function. Finally, the firm, either at seminars or other events, provides promotional items such as golf balls, flashlights, pens, and the like which have the firm's logo on them.

¶3 Analysis: Rule 7.3(c) currently states:

Every written communication from a lawyer soliciting professional employment from a prospective client and with whom the lawyer has no family relationship, prior or current professional relationship, or close personal friendship, shall prominently include the words "Advertising Material" on the outside envelope, if any, and at the beginning of the communication. For the purposes of this subsection, "written communication" does not include advertisement through public media, including but not limited to a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or television. (fn2)

¶4 In Opinion 99-04 (fn3) we determined that a "solicitation" in the context of Rule 7.3 means a communication initiated by the lawyer with respect to the lawyer's availability to provide or to accept professional employment and necessarily includes an offer by the lawyer to provide or to accept professional employment. (fn4)

¶5 If the newsletter, alert or brochure encourages the recipient to engage the firm's services or contact the firm for further information, extolls the firm's expertise, or otherwise contains an offer to provide legal services, then the item constitutes a "solicitation" of professional employment. As such, unless it is sent to a current or prior client or to someone with whom a lawyer in the firm has a familial relationship or close personal friendship, Rule 7.3(a) requires that it contain the words "Advertising Material" prominently on the outside envelope, if any, and at the beginning of the communication.

¶6 The firm's web-site, however, is not a written communication which is "sent" from the firm to anyone. A person's visit to a web-site to obtain information can be viewed either as "advertisement through public media" or as analogous to telephoning the firm or visiting a lawyer's office to request information; it does not require an "Advertising Material" legend. (fn5) An e-mail that is directed to a person's individual e-mail address, on the other hand, falls in the same category as a regular mailing and must contain the appropriate "Advertising Material" legend at the beginning of the e-mail message.

¶7 Finally, items such as pens, flashlights, golf balls and the like displaying the firm's logo do not constitute a written communication soliciting professional employment. The firm's logo does not extoll the firm's expertise, encourage the recipient to contact the firm, or otherwise request employment. As a result, such items do not need to contain the words "Advertising Material" on them. (fn6)

¶8 Conclusion: If the newsletters, alerts or brochures are designed by the firm in such a way that they constitute a solicitation of professional employment from a prospective client with whom no attorney at the firm has any family relationship, prior or current professional relationship, or close personal friendship, they must prominently include the words "Advertising Material" on the outside envelope, if any, and at the beginning of the communication. If the newsletters and alerts are not designed in such a way that they constitute a solicitation of professional employment, then they do not need to contain the words "Advertising Material" on them. Rule 7.3(c) does not require the firm's web-site to have the words "Advertising Material" prominently displayed on it. The firm's logo items also do not have to have the words "Advertising Material" displayed on them.

Footnotes

1. The request for an opinion was submitted by a law firm. Our analysis applies equally to individual lawyers.

2. Utah Rules of Professional Conduct 7.3(a) (2002). The current version of this rule was adopted by the Utah Supreme Court, effective April 1, 2001.

3. Utah Ethics Adv. Op. 99-04, 1999 WL 608212 (Utah St. Bar).

4. The 2001 amendments to Rule 7.3(a) do not affect our previous discussion of the definition of "solicit." See also Calif. Rules of Professional Conduct, Rule 1400(B)(1) ("solicitation" is any communication "concerning the availability for professional employment of a member or law firm in which a significant motive is pecuniary gain").

5. Utah Ethics Adv. Op. 97-10, 1997 WL 705482 (Utah St. Bar).

6. Although a case might be made that the "subject" or "re" line of an e-mail is similar to an envelope for a regular mailing, we do not decide here whether the words "Advertising Material" must be included in that line.

Rule Cited: 7.3