ETHICS DOCKET NO. 1988-16

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1988-16

Advertising-Solicitation Direct Mail Advertising

Your inquiry concerns a direct mailing ""to a particular type of business entity"" about your services as a ""consultant in five (5) specific areas, all relating directly to the entities business operation.""

  I called you directly to determine if the five areas of services as a consultant were: (a) non-lawyer and strictly business; (b) a mix of business and law; or (c) strictly legal in nature. You informed me that the services being offered were strictly legal and were not being offered as a business ""consultant.""

  Before the adoption of the Maryland Rules of Professional Conduct, this Committee, in Informal Opinion 84-78 and others, arrived at seven rules for direct mail announcements of a lawyer's services. Some of these seven rules were adopted in the new Rules of Professional Conduct, others were not. Now, direct mail announcements of legal services are permitted by Rule 7.2(a) with five basic ground rules contained in Rule 7.2. These five rules of 7.2 are that:

(1) the communications ""not ... (involve) ... in person contact;""

(2) a copy of the communication be ""kept for at least three years after its dissemination along with a record of when and where it was used;""

  (3) the lawyer making the communication ""shall not give anything of value to a person for recommending the lawyer's services,"" except for reasonable advertising costs and the usual charges of a lawyer referral service;

  (4) the communication ""shall include the name of at least one lawyer responsible for its content;""

  and, (5) a lawyer shall be personally responsible for compliance of the communication with Rules 7.1, 7.2, 7.3, 7.4 and 7.5 and ""be prepared to substantiate such compliance.""

In addition, the comments to Rule 7.2 require direct mail communication be subject to ""Rule 7.3(b) as well as Rule 7.1.

  These basic rules are set forth in detail because the Committee is concerned about direct mail communication. As Judge McAuliffe said in the Rules Order to the new Rules,

To expect that this or any other agency could also review each copy of the significant number of direct communications that are likely to be sent pursuant to this rule is to expect an impossibility.

You have asked that the Committee ""assume compliance with Rule 7.1."" However, the term ""consultant"" which you propose to use gives the Committee pause when assuming compliance with Rule 7.1. Webster defines the term ""consultant"" to mean ""one who consults another; one who gives professional advice or services; expert."" Such a term is too open-ended and, in the Committee's view, is ""likely to create an unjustified expectation about results the lawyer can achieve."" Rule 7.1(b). This is especially true when the term ""consultant"" is defined as ""expert,"" as per Webster. You have told me that you only plan on using the term, ""consultant,"" in a strictly legal sense. However, if you hold yourself out as an ""expert"" on certain legal matters, that status needs to be factually substantiated. Therefore, to the extent your direct mail communication describes you as a ""consultant,"" we feel it would violate Rule 7.1.

  Not having a copy of your announcement, the Committee cannot opine as to its compliance in other respects with the remainder of the new Rules.