Ethics Hotline & Opinions

ETHICS DOCKET NO. 1988-19

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MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1988-19

Advertising - Solicitation: Mail Solicitation


  Your inquiry asked whether you can take advantage of a ""foreclosure hotlist"", a list of newly filed foreclosures, by sending letters to homeowners identified on the list offering legal advice to possibly save their homes through bankruptcy or other means.

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 Rule 7.1, 7.2, 7.3, 7.4 and 7.5 and ""be prepared to substantiate such compliance.""

  Among those Rule 7.3(b) should be carefully considered by lawyers contemplating the use of direct mail communication to potential clients. It provides that ""(a) lawyer shall not contact, or send a communication to, a prospective client for the purpose of obtaining professional employment if ... the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer... "" Whether persons identified on the ""hotlist"" fit that description is a factual determination which the individual lawyer will have to make when considering direct mail announcements.

  You state in your letter that you are contemplating ""offering legal advice"" by letter to potential clients. We are assuming that you mean to offer to provide legal advice rather than actually providing unsolicited legal advice.

  Finally, you ask what action we intend to take against the company offering or lawyers using the foreclosure hot list. The purpose of this committee is to offer opinions on ethical matters facing Maryland attorneys and not to take action against lawyers or non-lawyers who may have acted unethically or illegally. The Committee intends to take no action.


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DISCLAIMER: Opinions of the Maryland State Bar Association (MSBA) Ethics Committee are an uncompensated service of the MSBA. This Committee’s opinions are not binding on the Maryland Court of Appeals, Maryland Attorney Grievance Commission, MSBA or this Committee. The reader is advised that subsequent judicial opinions, revisions to the rules of professional conduct, and future opinions of this Committee may render the Opinions stated herein outdated. As such, the Committee’s opinions are advisory only and neither the Committee nor the MSBA assumes any liability whatsoever with respect thereto. Accordingly, reliance upon the opinions of this Committee is solely at the risk of the user.