"
MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1988-27
Advertising-Solicitation: Direct Mail Solicitation
Your inquiry concerns a letter received by one of your corporate clients in the State of Maryland. The letter is from an attorney with an office in Washington, D.C. who is apparently a member of the Maryland Bar. You also indicate you are aware of at least two other of your firm's clients that have received similar letters. You requested our opinion as to whether the letter sent constituted an unethical solicitation by a member of the Maryland Bar.
The letter itself indicates that public records at the local courthouse indicate that the IRS has filed a Notice of Federal Tax Lien claiming back taxes are due from the company to which the letter is addressed. The letter states the lawyers legal education and the fact that he is a member of the Maryland Bar. It also gives a brief history of the lawyer's employment and the fact that he worked for the IRS for 12 years in various capacities. The letter goes on to present several courses of action which might be appropriate, and, ""if properly presented, acceptable to the IRS."" The letter concludes by indicating that if the company would like to discuss the options to please call the lawyer at a specified phone number to arrange an appointment, and that there would be no charge for the consultation if it is decided the lawyer's services would not be necessary.
Under the Maryland Rules of Professional Conduct now in effect for the State of Maryland, direct mail announcements of legal services are governed by Rule 7.2, ""Advertising.""
(a) Subject to the requirements of Rules 7.1 and 7.3(b), a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor, radio or television advertising, or through communications not involving in person contact.
(b) A copy or recording of an advertisement or such other communication shall be kept for at least three years after its last dissemination along with a record of when and where it was used.
(c) A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may pay the reasonable cost of advertising or written communication permitted by this rule and may pay the usual charges of a not-for-profit lawyer referral service or other legal service organization.
(d) Any communication made pursuant to this rule shall include the name of at least one lawyer responsible for its content.
(e) A lawyer, including a participant in an advertising group or lawyer referral service or other program involving communications concerning the lawyer's services, shall be personally responsible for compliance with the provisions of Rules 7.1, 7.2, 7.3, 7.4 and 7.5 and shall be prepared to substantiate such compliance.
The Comments under Rule 7.2 indicate that Paragraph (a) permits communications by mail to a specific individual although it does not permit contact by telephone or in-person delivery of written material except through the postal service or other delivery service.
Rule 7.2(e) clearly calls upon the lawyer who is responsible for the communication to comply with the provisions of Rule 7.1, 7.2, 7.3, 7.4, and 7.5, and further requires that such lawyer be prepared to substantiate such compliance.
Rule 7.1 requires that a lawyer not make a false or misleading communication about the lawyer or the lawyer's services and goes on to set forth when a communication is false or misleading.
Rule 7.3(b) states that a lawyer shall not send a communication to a prospective client for the purpose of obtaining professional employment if:
(1) 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;
(2) the person has made known to the lawyer a desire not to receive communications from the lawyer; or
(3) the communication involves coercion, duress, or harassment.
Rule 7.4 provides that a lawyer may communicate the fact that the lawyer does or does not practice in a particular field of law, subject to the requirements of Rule 7.1. Rule 7.5 addresses the use of firm names and letterheads.
It can be seen, therefore, that the letter that you have inquired about must be scrutinized carefully in accordance with the above mentioned rules. In light of this Committee's lack of knowledge concerning the status of your clients that have received the letter, the actual background and legal education of the attorney who sent the letter, or the truthfulness of the statements that are made within the letter, it is unable to opine on whether the letter constitutes a violation of any of the above mentioned rules. It does, however, opine, that such a letter of solicitation is not in and of itself a violation of the Maryland Rules of Professional Conduct and that in order for such a letter to be unethical, it must somehow violate one of the above mentioned provisions.
"