Can a personal injury lawyer's direct-mail letter say the lawyer can suggest health-care providers to accident victims who have no treating doctor?

Plain-English summary

Opinion E-92-4 (1992) addressed a personal injury lawyer who sends personalized direct-mail letters to people involved in automobile accidents and wants to state in those letters that the lawyer can suggest various health-care providers or other sources of medical care for injured parties who do not have a treating physician. The committee concluded that advertising the lawyer "can suggest various health-care providers" is misleading without a caveat under SCR 20:7.1(a)(1), and that the mailing also must comply with SCR 20:7.3(a) and (b) governing targeted direct mail.

The committee explained what the caveat should convey: that any such referral is made only after the lawyer discusses with the client how a referral by the lawyer could affect the representation. In that consultation, the committee said, a lawyer would explain that the lawyer's involvement in a referral might be used to impeach the testimony of the health-care provider, particularly if there is a pattern of referrals to that provider, and would disclose any financial interest the lawyer has in the provider's business and any other association with the provider that could materially limit the client's representation, implicating SCR 20:1.8(a) and SCR 20:1.7(b).

Currency note

This opinion was issued in 1992, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct (the state's Ethics 2000 update). The advertising and solicitation rules (SCR 20:7.1 and 20:7.3) and the conflict rules (SCR 20:1.8 and 20:1.7) have been revised since. 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 Treat this page as historical context, not current guidance.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: Could the lawyer's direct-mail letter say the lawyer can suggest health-care providers?

A: Only with a caveat. The committee concluded that statement is misleading under SCR 20:7.1(a)(1) without a qualification, and the mailing must also meet the targeted-direct-mail requirements of SCR 20:7.3(a) and (b).

Q: What did the caveat need to address?

A: The committee concluded the caveat should explain that any referral is made only after the lawyer discusses with the client how it could affect the representation, including the risk that the referral could be used to impeach the provider and any financial interest the lawyer has in the provider.

Q: What conflict issues did a lawyer-to-provider referral raise?

A: The committee pointed to SCR 20:1.8(a) (business transactions and interests) and SCR 20:1.7(b) (a conflict that could materially limit the representation), arising from the lawyer's financial interest in or association with the provider.

Background and rules framework

The opinion interprets SCR 20:7.1 / Model Rule 7.1 (no false or misleading communications, specifically 7.1(a)(1)) and SCR 20:7.3 / Model Rule 7.3 (solicitation and targeted direct mail), together with SCR 20:1.8(a) / Model Rule 1.8(a) (business transactions with or interests adverse to a client) and SCR 20:1.7(b) / Model Rule 1.7 (a personal-interest conflict that could materially limit the representation).

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:7.1(a)(1) / Model Rule 7.1 (communications concerning a lawyer's services)
• Wis. SCR 20:7.3(a), 20:7.3(b) / Model Rule 7.3 (solicitation; targeted direct mail)
• Wis. SCR 20:1.8(a) / Model Rule 1.8(a) (business transactions and interests)
• Wis. SCR 20:1.7(b) / Model Rule 1.7 (conflicts of interest)

See also

• AL Bar Ethics Op. 1996-05: Direct Mail Advertising
• ABA Formal Op. 501: Solicitation
• WI Ethics Op. E-94-3: Law Firm Open House

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-92-4.pdf