ETHICS OPINION 679-1990 ADVERTISING, SOLICITATION, CHANGE OF ASSOCIATION.

NEW YORK COUNTY LAWYERS ASSOCIATION

Committee on Professional Ethics

QUESTION NO. 679 (90-4)

TOPIC: ADVERTISING, SOLICITATION, CHANGE OF ASSOCIATION.

DIGEST: (1) A lawyer may send announcements of the opening of an office to any person, including clients of the lawyer’s former firm; (2) the lawyer may send letters more fully describing the new law practice to any person, including clients of the former firm, (3) the lawyer may place announcements in trade journals where the clients of the former firm are likely to see them; and (4) in-person solicitation of clients is generally prohibited; however, DR 2-104(B) authorizes a lawyer to accept employment from a former client if the advice that induced such employment is germane to the former employment.

CODE: DR 2-10l(A), DR 2-102(A) (2), DR 2-103 (A), DR 2-104(A) & (B), DR 2-105.

QUESTION:

A lawyer formerly associated with Firm A leaves to join another firm or to establish a separate law practice. To what extent may the lawyer solicit business from clients of Firm A by (1) sending announcements of the opening of an office, (2) sending letters more fully describing the new law practice,(3)placing announcements in trade journals where the clients of Firm A are likely to see them, or (4) speaking directly to clients of Firm A?

OPINION:

The jurisdiction of this Committee is limited to matters of professional ethics. Consequently, we do not opine on whether any actions taken by the lawyer would constitute tortious interference with the contractual rights of Firm A. See, e.g. Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 393 A,2d 1175 (Pa. 1978), cert, denied 442 U.S. 907 (1979).

The New York State Bar Association addressed certain of the issues presented here in N.Y. State 83 (1968). However, since that opinion was rendered before the Supreme Court’s decision in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), we believe it is appropriate to revisit the subject here.

Professional Announcements

DR 2-102(A)(2) covers the subject of professional announcement cards. It states as follows:

A lawyer or law firm may use . . . a professional announcement card stating new or changed associations or addresses . . . or similar matters pertaining to the professional offices of a lawyer or law firm, which may be mailed to lawyers, clients, former clients, personal friends and relatives. It may state biographical data, the names of members of the firm and associates . . . It shall not state the nature of the practice except as permitted under DR 2-105.

DR 2-105(A) permits a lawyer or law firm to publicly identify one or more areas of law in which the lawyer or firm practices, or to state that the practice is limited to one or more areas of law.

DR 2-102(A)(2) clearly allows a lawyer to send an announcement of changed professional affiliations to former clients. See ABA Inf. Opin.84-1504 (1984), ABA Inf. Opin. 1466 (1981), ABA Inf. Opin. 1457(1980). Moreover, although the rule limits the mailing of professional announcements to lawyers, clients, former clients, personal friends and relatives, opinions of several ethics committees and courts in New York have held, since Bates, that information that may be placed in an advertisement allowed under DR 2-101may be mailed to any person. See, e.g. N.Y. State 505(1979), Matter of Koffler, 51 N.Y.2d 140 (1980), cert. den. 450 U.S. 1026 (1981). In In re R.M.J,455 U.S. 191(1982), the Supreme Court held unconstitutional the limitations on the classes of recipients to whom announcement cards may be mailed in the Missouri version of DR 2-102(A)(2). Indeed, the amendments to the Code approved by the Appellate Divisions on April 5, 1990,to be effective September 1,1990, eliminate the restriction on the recipients of professional announcements. Accordingly, it would not be improper for the lawyer to send announcements to former clients and others of the opening of an office.

Letters Describing Law Practice

As noted above, DR 2-101 (A) permits advertising that is not deceptive or misleading. Moreover, several courts and ethics committees have held that information that may be placed in an advertisement allowed under DR 2-101 may be mailed to any person, Immediately after the Bates case, it was not clear whether such advertisements could be mailed to a targeted group of recipients who the lawyer has reason to suspect might have use of the lawyer’s services. However, this question has now been resolved. In Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), the Supreme Court held that a newspaper advertisement directed at a targeted group of people was not improper. Similarly, in Shapero v. Kentucky Bar Association, 108 S. Ct. 1916, 100 L. Ed.2d 475 (l988), the Court upheld the mailing of letters to potential clients against whom foreclosure suits had been filed, stating that such targeted mailings could not be categorically prohibited, and in Matter of von Wiegen, the New York Court of Appeals found that the blanket prohibition of mail solicitation of accident victims violated the lawyer’s right of expression under the First and Fourteenth Amendments of the U.S. Constitution. Thus, it would not be improper for the lawyer to send letters fully describing the lawyer’s practice, as long as such letters are truthful and not deceptive or misleading.

Advertisements in Trade Magazines

Since a lawyer may use truthful advertisements and may target advertisements or letters to persons with specific legal problems, there is no impropriety in placing advertisements in a trade journal.

In-Person Solicitation

Solicitation by lawyers is prohibited by New York law Judiciary Law§§479, 482.In-person solicitation presents special problems of overreaching in an environment where policing by regulatory authorities is difficult. Accordingly, the Supreme Court has upheld the constitutionality of a ban on such activity. Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978). As the Court noted:

Unlike a public advertisement, which simply provides information and leaves the recipient free to act up on it or not in-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection. The aim and effect of in-person solicitation may be to provide a one-sided presentation and to encourage speedy and perhaps uninformed decision making; there is no opportunity for intervention or counter-evaluation by agencies of the Bar, supervisory authorities, or persons close to the solicited individual.

Id. at 457.

Ironically, lawyers have always engaged in a certain amount of in- person solicitation from friends, relatives, business and social acquaintances. This fact was recognized in Matter of Greene, 54 N.Y,2d 118, 444 N.Y.S.2d 883,429N.E.2d 390 (1981), where Judge Fuchsberg, in a dissent joined by Chief Judge Cooke, criticized the Court of Appeals’ ban on letters sent by a lawyer to real estate brokers asking them to recommend the services of the lawyer to their clients. The dissenters saw no difference between Greene’s letter to real estate brokers and “the far more amorphous collection of contacts with the coterie of friends, relatives, business or social acquaintances and former clients who constitute the main source to which most lawyers engaged in private practice look for referrals.” However, neither the courts nor the legislature has seen fit to relax the solicitation rules to comport with the “amorphous collection of contacts” that lawyers may cultivate.

Solicitation is also generally prohibited by the Code. DR 2-103 (A) provides that a lawyer may not solicit employment as a private practitioner from a person who has not sought advice regarding employment of a lawyer, in violation of any statute or court rule, other than as permitted by DR 2-101 (governings advertising) or DR 2-104 (denominated “Suggestion of Need of Legal Services”. Thus, the answer to our final question depends upon an interpretation of DR 2-104(A) and (B). Those sections provide:

A lawyer who has given unsolicited advice to an individual to obtain counsel or take legal action shall not accept employment resulting from that advice, in violation of any statute or court rule.

A lawyer may accept employment by a close friend, relative, former client (if the advice is germane to the former employment) or one whom the lawyer reasonably believes to be a client.

Consequently, a lawyer may engage, in person, in soliciting employment of himself or herself if the person solicited is (l) reasonably believed by the lawyer to be a client already, (2) a former client, if the advice to obtain counsel or take legal action is germane to the former employment, or (3) a close friend or relative.

The language of DR 2-104(B) raises two issues:(l) when does a lawyer have reason to believe that a person is or was a client, and (2) when is advice to a former client germane to the former employment. We have found few ethics opinions which are helpful in answering these questions. Several opinions have allowed a lawyer to recommend to clients that they review their wills. See N.Y. State 188 (1971), ABA 210 (1941). These are consistent with DR 2-104(B)’s authorization to advise a current client to take legal action. However, we found no opinions dealing with former clients.

The Code does not define when a person is a client It is generally true that lawyers do not “own” clients. A client is free to choose the lawyer who will provide representation, and may discharge an existing attorney at any time, Teichner v. W&J Holsteins, Inc., 64 N.Y.2d 977, 489 N.Y.S.2d 36, 478 N.E.2d 177 (1985). In one sense, a client is any person to whom a lawyer provides representation. Thus, if the lawyer worked on client matters while at Firm A, he may reasonably believe that the client is a “client”. In ABA Informal Opinions 1457 and 1466, supra, the ABA’s Ethics Committee opined that it would be appropriate for a lawyer to send a notice to clients for whose active, open and pending matters the lawyer was directly responsible as a partner or associate, and that such announcement could emphasize that the client had the right to decide how and by whom the pending matters would be completed. We believe that, consistent with DR 2-104(B), the lawyer could ethically make the same statements in person However, we note that this is the very conduct that the Supreme Court of Pennsylvania found objectionable in Adler, supra, citing Ohralik v. Ohio State Bar Ass’n, 436 U.S. 412 (1978).

In some cases, it may be clear that the client is a client of the firm and not of particular lawyers in the firm. For example, a notice of appearance may state that the firm represents the client. Moreover, a partnership agreement may set forth which lawyers are responsible for the client relationship. If this is the case, clients of the firm may constitute “former clients” of the departing lawyer. Under DR 2-110(A) the withdrawing lawyer is required to take reasonable steps to avoid foreseeable prejudice to the rights of the client. This may include advising the former client of things that must be done to accomplish the client’s objectives. Since such advice would be “germane” to the former employment under any definition, if the client asked the lawyer to continue the representation, DR 2-104(B) would allow acceptance of such employment.

The Code does not explain when advice is “germane” to the prior employment. Accordingly, we believe the word must be given its ordinary meaning of “closely related” or “relevant”. See Random House Dictionary (Unabridged ed. 1967). We believe employment or advice may be closely related because it concerns the prior matter or because the subject matter or issues are the same. This test is similar to the one that has been used under Canon 5 to determine when two representations are “substantially related”.

CONCLUSION:

A lawyer formerly associated with a Firm A who leaves the firm to establish a separate law practice may solicit business as follows:(1) the lawyer may send announcements of the opening of an office to any person, including clients of Firm A; (2) the lawyer may send letters more fully describing the new law practice to any person, including clients of Firm A, but we do not opine of whether statements made in letters to clients of Firm A might constitute tortious interference with the contractual rights of Firm A; (3) the lawyer may place announcements in trade journals where the clients of Firm A are likely to see them; and (4) in-person solicitation of clients is generally prohibited; however, DR 2-104 (B) authorizes a lawyer to accept employment from a former client if the advice that induced such employment is germane to the former employment.

May 25, 1990