Can an Arizona law firm mail brochures and newsletters to non-client businesses, publicize free speaking engagements, and use Welcome Wagon to reach new residents?

Plain-English summary

A law firm asked about three marketing plans: mailing a brochure, newsletter, and local directory to a selected group of newly established non-client businesses; using direct mail to tell trade and professional associations and social-service agencies that the firm's attorneys were available to speak for free; and paying Welcome Wagon, Inc. to deliver the firm's brochure to new residents. The opinion concluded that all three were permissible, with the advertising rules applying differently to each.

On the first plan, because the package would go to non-clients who were not known to need legal services in any particular matter, the committee held ER 7.3 did not apply and the mailing was governed by ER 7.1 and ER 7.2. The package was predominantly informational and did not appear false or misleading under the standard in Matter of Zang and Opinion 89-09, so it could be mailed, but because it was sent for the purpose of obtaining employment it had to be marked "Advertisement" under ER 7.2(e)(1) and a copy retained for three years under ER 7.2(b) and (e)(2). The committee noted an exception for material sent to a named in-house counsel (per Opinion 90-08), and explained that the newsletter alone, if distributed purely as a service and not to obtain employment, could go unlabeled like the Law Review in Opinion 90-05, but that exception did not apply when the newsletter was bundled with the promotional package.

On the second plan, the committee held, following Opinion 88-07, that direct-mail notices offering the attorneys' free speaking availability need not comply with ER 7.2(e). The notices could include short factual statements of the topics and the attorneys' qualifications, provided the speaking engagement conformed to the seminar guidelines of Opinion 87-23. On the third plan, the committee held that using Welcome Wagon to distribute the brochure to new residents was permissible, but because the brochures would be distributed to obtain employment they had to be marked "Advertisement" under ER 7.2(e)(1) and the firm had to keep or be able to obtain a list of recipients; the committee added that the marking was "particularly appropriate" because it would dispel any impression that Welcome Wagon was endorsing the firm.

Currency note

This opinion was issued in 1990, before the State Bar of Arizona's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Must a law-firm brochure mailed to non-client businesses be marked "Advertisement"?

A: Yes, when it is sent to obtain professional employment. The opinion held the package had to carry the "Advertisement" marking under ER 7.2(e)(1) and that a copy be retained for three years.

Q: Does a notice offering attorneys to speak for free to an association need the "Advertisement" label?

A: No. The opinion held, following Opinion 88-07, that such a notice need not comply with ER 7.2(e), so long as it gives only short factual statements of topics and qualifications and the engagement follows the Opinion 87-23 seminar guidelines.

Q: Can a firm use a service like Welcome Wagon to hand out its brochure?

A: Yes, but the brochures had to be marked "Advertisement" and the firm had to keep or be able to obtain a list of recipients. The opinion observed the label also helps dispel any impression that Welcome Wagon was endorsing the firm.

Q: Was a stand-alone newsletter treated differently from the brochure package?

A: Yes. The opinion said a newsletter distributed by itself as a service, not to obtain employment, could go unlabeled like the Law Review in Opinion 90-05, but that exception did not apply once the newsletter was bundled with the promotional package.

Background and rules framework

The opinion interprets Arizona ER 7.1 (Model Rule 7.1, false or misleading communications), ER 7.2 (Model Rule 7.2, advertising, including the ER 7.2(e) "Advertisement" marking and retention requirements), and ER 7.3 (Model Rule 7.3, direct contact with prospective clients). It applies the false-or-misleading standard from Matter of Zang and builds on the firm's prior advertising opinions on seminars (Opinion 87-23, Opinion 88-07), service publications (Opinion 90-05), and mailings to named in-house counsel (Opinion 90-08).

Citations and references

Rules of Professional Conduct:

• MR 7.1 / ER 7.1 (false or misleading communications)
• MR 7.2 / ER 7.2 (advertising; "Advertisement" marking and retention)
• MR 7.3 / ER 7.3 (direct contact with prospective clients)

Cases:

• Matter of Zang, 154 Ariz. 134, 741 P.2d 267 (1987), standard for false or misleading lawyer communications

Other opinions cited:

• Arizona Opinion No. 87-23 (1987): seminar guidelines
• Arizona Opinion No. 88-07 (1988): seminar brochures need not be labeled "Advertisement"
• Arizona Opinion No. 89-09 (1989): false-or-misleading criteria for mailings
• Arizona Opinion No. 90-05 (1990): a service "Law Review" need not be labeled
• Arizona Opinion No. 90-08 (1990): mailings to a named in-house counsel

See also

• AZ Ethics Op. 90-04: Professional Announcements and the Advertising Rules
• AZ Ethics Op. 89-07: Catchy Advertising Slogans

Source

• Landing page: https://tools.dev.azbar.org/RulesofProfessionalConduct/ViewEthicsOpinion.aspx?id=602

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

8/1990

Law firm brochure mailed to select group of non-client businesses; publicizing the availability of firm members to speak before such groups; using the services of Welcome Wagonto distribute firm's brochures.

FACTS

The inquiring law firm has developed a firm brochure which it wishes to distribute to a selected group of newly established businesses. These businesses "may" need the type of service the law firm offers. With the brochure, the law firm intends to include in a newsletter format general advisory material relating to the recipient company's business. The newsletter states: "For further analysis of how these statutes may affect you, or to receive copies of the statutes, please call...." Also, with the brochure and newsletter, the law firm intends to send a local government telephone directory. A form cover letter will invite the recipient company to consider the law firm for legal services.

The law firm also wishes to publicize the availability of firm members to speak to trade and professional associations and social service agencies. The firm intends to contact such organizations by direct mail, advising the associations and agencies of this service and including biographies of participating attorneys.

The law firm also wishes to distribute its firm brochure to new residents in the community through Welcome Wagon, Inc. The firm would be charged a fee for each household to which the brochure is delivered.

QUESTIONS

1. May a law firm ethically mail its firm brochure and related materials to a selected group of non-client businesses?

2. May a law firm ethically publicize by direct mail to trade and professional associations and social service agencies the availability of its attorneys to speak before a group without charge?

3. May a law firm ethically use the services of Welcome Wagon, Inc., to distribute its firm brochure to non-clients?

ETHICAL RULES CITED

ER 7.1. Communications Concerning a Lawyer's Services.

ER 7.2. Advertising.

(e) Written communications to prospective clients for the purpose of obtaining professional employment are subject to the following requirements.

(1) Such written communications shall be plainly marked “Advertisement” on the face of the envelope and at the top of each page of the written communication in type no smaller than the largest type used in the written communication; and

(2) A copy of each such written communication shall be retained by the lawyer for three years. If written communications identical in content are sent to two or more prospective clients, the lawyer may comply with this requirement by retaining a single copy together with a list of the names and addresses of persons to whom the written communication was sent.

(f) A lawyer shall not send, or knowingly permit to be sent, on behalf of himself, his firm, his partner, an associate, or any other lawyer affiliated with him or his firm, a written communication to a prospective client for the purpose of obtaining professional employment if:

(1) The written communication concerns a specific matter and the lawyer knows or reasonably should know that the person to whom the communication is directed is represented by a lawyer in the matter;

(2) It has been made known to the lawyer that the person does not want to receive such communications from the lawyer;

(3) The communication includes coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence; or under ER 7.1.

(4) The communication is otherwise improper under ER 7.1

ER 7.3. Direct Contact with Prospective Clients.

(b) Subject to the requirements of ER 7.1 and ER 7.2, and paragraph (c) herein, a lawyer may initiate written communication, not involving personal or telephone contact, with persons known to need legal services of the kind provided by the lawyer in a particular matter, for the purpose of obtaining professional employment. Such written communication shall be clearly marked on the envelope and on the first page of the communication contained in the envelope, as follows:

ADVERTISING MATERIAL:

THIS COMMERCIAL SOLICITATION

HAS NOT BEEN APPROVED BY THE

STATE BAR OF ARIZONA

Said notification shall be printed in red ink, in all capital letters, in type size at least double that used in the body of the communication. If the solicitation advertises representation on a contingent or "no recovery, no fee" basis, it shall also state that the client may be liable for costs and expenses.

(c) At the time of dissemination of such written communication, a copy shall be forwarded to the Clerk of the Arizona Supreme Court and the State Bar of Arizona at its Phoenix office. If a written communication identical in content is sent to two or more prospective clients, the lawyer may comply with this requirement by forwarding a single copy together with a list of the names and addresses of persons to whom the written communication was sent.

RELEVANT PRIOR ARIZONA OPINIONS

Opinion No. 90-05 (June 26, 1990)

Opinion No. 90-08 (August 2, 1990)

Opinion No. 89-09 (November 6, 1989)

Opinion No. 88-07 (September 13, 1988)

Opinion No. 87-23 (October 26, 1987)

OPINION

• The law firm may mail its cover letter, brochure and accompanying materials to the selected group of non-client businesses, provided that the communications are made in accordance with ER 7.1 and 7.2.

The inquiring law firm represents that the cover letter, brochure, newsletter and directory (“the package”) will be mailed to non-clients who are not known to need legal services in any particular matter. Hence, ER 7.3 is not applicable. If the package were sent to someone known to need legal services of the kind provided by the lawyer in a particular matter, the law firm would have to comply with ER 7.3.

The law firm may mail the package to the selected non-client businesses provided the materials are not false or misleading, ER 7.1, and provided that the firm complies with ER 7.2.

Here, the package is predominantly informational. The brochure conveys apparently accurate information relevant to making informed rational choices of counsel. The newsletter contains information about new laws which may affect the recipients. None of the materials contain emotional or irrational sales pitches. They do not appear to contain misrepresentations. They are probably not likely to create unjustified expectations about the results the law firm can achieve. They are not coercive, intimidating nor constitute overreaching. In short, they do not appear to be false or misleading under the criteria discussed in Matter of Zang, 154 Ariz. 134, 741 P.2d 267 (1987), or our Opinion No. 89-09 (November 6, 1989), and thus may be mailed to the selected non-client businesses.

However, the law firm must comply with ER 7.2. A copy of the package must be kept for three years after its last dissemination with a record of when and to whom the package was mailed. ER 7.2(b) and 7.2(e) (2). And the package, which would be mailed for the purpose of obtaining professional employment, must be plainly marked "Advertisement" in accordance with ER 7.2(e)(1).

An exception would exist if the package were sent directly to in-house counsel for the selected non-client business who was specifically identified by name on the cover letter describing the materials and on the envelope used to send the materials. See our Opinion No. 90-08 (August 2, 1990).

In our Opinion No. 90-05 (June 26, 1990), we concluded that a law firm could ethically prepare and distribute to non-clients a Law Review that did not include the “Advertisement" label required by ER 7.2(e) (1). There, the Law Review was deemed analogous to seminar brochures which do not require the "Advertisement" label. See our Opinion No. 88-07 (September 13, 1988). And there, according to the inquiring law firm, the Law Review was prepared and distributed as a service to the construction industry and not for the purpose of obtaining professional employment.

Here, the proposed newsletter is similar to the Law Review. If distributed by itself and not with the other promotional materials, and if sent as a service and not for the purpose of obtaining professional employment, the "Advertisement" label would not be required. But that is not the case here.

2. The law firm may publicize by direct mail to trade and professional associations and social service agencies the availability of its attorneys to speak before a group without charge, and the communications need not comply with ER 7.2(e).

In our Opinion No. 88-07 (September 13, 1988), we concluded that: (1) a law firm may properly conduct legal seminars which conform to guidelines promulgated by this Committee in its Opinion No. 87-23 (October 26, 1987), even though the firm's motive is financial rather than educational; (2) that the firm may publicize such seminars in an appropriate manner, including mailing promotional brochures to selected non-clients; and (3) that such brochures mailed to non-clients which give short factual statements of the participating attorneys' qualifications, and which do not violate ER 7.1 or ER 7.2(f), need not be labeled “Advertisement” under ER 7.2(e).

The situation here is similar to that involved in our Opinion No. 88-07. The Committee concludes that the law firm may publicize by direct mail to trade and professional associations and social service agencies the availability of its attorneys to speak before a group without charge, and the communication need not comply with ER 7.2(e). The communication may contain short factual statements of the areas of law on which the various attorneys will speak and the qualifications of those attorneys to speak on those topics. The speaking engagement or seminar must conform to the guidelines set forth in our Opinion No. 87-23.

3. The law firm may use the services of Welcome Wagon, Inc., to distribute its firm brochure to new residents who are non-clients provided the brochures are labeled "Advertisement" in accordance with ER 7.2(e) (1).

The analysis relative to the first issue applies here. The brochures would be distributed by Welcome Wagon, Inc., for the purpose of obtaining professional employment. Thus, the brochures must be plainly marked "Advertisement" in accordance in ER 7.2(e) (1). The law firm must also keep or be able to obtain from Welcome Wagon, Inc., a list of the names and addresses of persons to whom the brochures were distributed. ER 7.2(e) (2).

The labeling requirement is particularly appropriate in this instance as labeling the brochure "Advertisement" would tend to ameliorate any misimpression one might get that Welcome Wagon, Inc., was endorsing or recommending the law firm.

©State Bar of Arizona 1990