Ethics Hotline & Opinions

ETHICS DOCKET NO. 1989-50

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MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1989-50

Direct mail solicitation of targeted clients


In your letter dated February 15, 1989, you provide the Committee with the following facts. Your firm represents several property owners In the path of a proposed roadway construction. Litigation of objections to such construction projects relies heavily on the use of expert testimony. You have considered an arrange merit which would divide the cost of the expert testimony among all affected property owners, not only your current clients.This would require communicating with non-client property owners to advise them of your services and proposal. You have requested the Committee's opinion as to whether written communications which provided such Information to non-client property owners are consistent with the requirements of the Maryland Rules of Professional Conduct.

Rule 7.2 of the Maryland Rules of Professional Conduct permits a lawyer to advertise his or her services through communication not involving in-person contact so long as the communications adhere to the requirements of Rules 7.1 and 7.3(b). Rule 7.1 prohibits a lawyer from making a false or misleading communication about the lawyer or the lawyer's services. Rule 7.3(b) prohibits a lawyer from communicating with a prospective client if (1) the lawyer knows that the person could not exercise reasonable judgment in employing a lawyer because of the persons physical, mental or emotional state; (2) has made known to the lawyer that he or she does not wish to receive communication from the lawyers; or (3) the communication involves coercion, duress or harassment.

Subsequent to the adoption of the Maryland Rules of Professional Conduct, the Supreme Court addressed the question of lawyer advertising in Shapero v. Kentucky Bar Association, 108 S. Ct. 1916 (1988). In Unnamed Attorney v. Attorney Grievance Commission, 313 Md. 357 (1988), the Maryland Court of Appeals interpreted the Shapero decision in the context of the Maryland Rules requirements. The Court of Appeals concluded that modes of solicitation are protected by the First Amendment regardless of the recipient's condition, so long as such communication is neither false, misleading nor overreaching, therefore, raising questions as to the validity of Rule 7.3(b)(1) which focuses on the recipient's condition.  See   313 Md. 357, 368.

Based on the foregoing, the Committee has concluded that so long as your written communications to non-client property owners not false, misleading or overreaching it is not prohibited by the Maryland Rules of Professional Conduct. See   Ethics Docket 89-20.

 

References: Ethics Docket  1989-20


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