NYCLA COMMITTEE ON PROFESSIONAL ETHICS FORMAL OPINION

No. 726

 

TOPIC:

 

Solicitation by mail addressed to corporate defendants in civil suits

 

DIGEST:

 

A LAWYER MAY MAIL TO A CORPORATION THAT HAS BEEN NAMED AS A DEFENDANT IN A LAWSUIT A LETTER SOLICITING BUSINESS FROM THE CORPORATE DEFENDANT, AS LONG AS THE LETTER IS TRUTHFUL, NONDECEPTIVE, AND NOT MISLEADING

 

CODE:

 

DR 2-101(A); DR 2-103(A); DR 2-105; EC 2-9; EC 2-10

 

QUESTION:

 

Inquirer poses the following three-part question:

 

A law firm subscribes to a service which provides the names of parties and a summary of complaints filed each day in the Supreme Court for New York County and the United States District Court for the Southern District of New York. May the law firm engage in the following conduct:

 

a) Send a letter to a named corporate defendant advising it “as a matter of courtesy” that suit has been commenced against it and inviting corporate defendant to contact the law firm for further information?

 

b) Send a letter to a named corporate defendant advising it “as a matter of courtesy” that suit has been commenced against it and include with the letter a copy of the law firm’s brochure which may contain information regarding the law firm’s expertise in the area of law which is the subject of the complaint and inviting corporate defendant to contact the law firm for further information?

 

c) Send a letter to a named corporate defendant advising it “as a matter of courtesy” that suit has been commenced against it and include with the letter a copy of the law firm’s brochure which may contain information regarding the law firm’s expertise in the area of law which is the subject of the complaint as well as including language in the letter to the effect that the law firm has significant expertise in the area of law which is the subject of the complaint and inviting corporate defendant to contact the law firm for further information?

 

OPINION:

 

In its current form, Disciplinary Rule 2-103 (A) of the New York Lawyers’ Code of Professional Responsibility purports to impose stringent limitations on the right of lawyers to solicit professional employment. In 1988, however, the Supreme Court of the United States expressly held that state bar associations cannot prohibit lawyers from sending truthful, nondeceptive solicitation letters to prospective clients. See Shapero v. Kentucky Bar Ass’n, 486 U.S. 466, 479 (1988).

 

In the wake of the Supreme Court’s decision in Shapero, on numerous occasions committees on professional ethics have issued opinions allowing direct mail to prospective clients. See, e.g., N.Y. State Opinion #624 (1991) (allowing direct mail solicitation); Nassau County Opinion 93-38 (1993) (allowing direct mail solicitation of defendants in foreclosure actions.)

 

This Committee also believes that direct mail letters along the lines suggested by the inquirer in his three-part question are permissible, as long as their contents are truthful, nondeceptive, and not misleading. DR 2-101 (A) prohibits — and EC 2-9 and EC 2-10 inveigh against — false and deceptive advertising. DR 2-105(A) permits a lawyer to disseminate advertising that identifies areas of law in which the lawyer practices, provided that the lawyer refrains from characterizing himself as a specialist in a particular area. Inquirer’s three proposed letters do not seem to contemplate his firm’s identifying its attorneys as specialists, nor does he suggest that he intends to mislead prospective clients. Accordingly, his firm can send to corporate defendants any one of the three letters described in his question.

 

It is worth noting that on January 24, 1997 the House of Delegates adopted proposed amendments to the New York Lawyer’s Code of Professional Responsibility. Those proposed amendments have been presented to the Appellate Division, but will not be binding upon lawyers unless and until the Appellate Division approves them. The proposed amendments include a substantial revision to DR 2-103(A) designed to make the rule consistent with Supreme Court precedent by permitting solicitation unless the method of communication falls within certain defined categories of misconduct; the new rule generally will prohibit only solicitation that is (1) false, misleading, or deceptive, and thus prohibited by DR 2-101 (A), or (2) harassing or coercive. A proposed new EC 2-14, if approved, will provide further guidance to attorneys who wish to advertise or to solicit clients by giving seven examples that would usually constitute false, deceptive, or misleading advertising. The letters suggested by inquirer would also be permissible under the disciplinary rules and ethical considerations before the Appellate Division.

 

CONCLUSION:

 

A law firm may send a corporate defendant any one of the three letters suggested by inquirer in his letter to the Committee, as long as his letters are truthful, nondeceptive, and not misleading. The proposed amendments to the Code will, if adopted by the Appellate Division, make it clear that such letters are permissible subject to the same conditions.