Can a lawyer mail business cards to accident victims and others learned about through the news, and what must the mailing say?

Plain-English summary

A lawyer asked whether he could mail his business card, without letterhead, to "prospective clients," meaning not the general public but specific persons he learned about through newspapers or other media, and what he had to do to comply with the solicitation rule.

The committee applied DR 2-103(B) and (C). Paragraph (B)(1) barred soliciting professional employment where the lawyer knew or should know the person's physical, mental, or emotional state created a potential that the person could not exercise reasonable judgment in employing a lawyer. Quoting the comment of the SJC's Committee on Lawyer Solicitation, the committee explained that this turned on the times and circumstances of the contact and was meant to be all-inclusive, reaching, for example, a person in active treatment for a traumatic injury or one lacking the sophistication to select a lawyer. The committee advised that mailing cards to recent accident victims, their relatives, or others who had suffered a serious loss would be prohibited under most conceivable circumstances, because such people often suffer emotional stress; the mere potential that the target cannot exercise reasonable judgment was enough to bring the conduct within the rule. It pointed to Florida Bar v. Went For It, Inc. for the rationale that the intrusion comes from confronting victims while their wounds are still open, and from the reputational harm to the profession.

Where paragraph (B)(1) did not apply, the committee advised that the lawyer still had to comply with DR 2-103(C)(1) by marking the business card, and the envelope, as "advertising," because sending a business card without letterhead was no different from sending a soliciting letter or flyer, and had to retain a copy for two years.

Currency note

This opinion was issued in 1997, before Massachusetts's adoption of the 2015 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 Treat this page as historical context, not current guidance.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: Could the lawyer mail business cards to people he read about in the news?

A: The committee concluded that targeting recent accident victims, their relatives, or others who suffered a serious loss would be prohibited under most circumstances by DR 2-103(B)(1), because their emotional state may prevent reasonable judgment in hiring a lawyer.

Q: When solicitation was allowed, did the business card have to say anything special?

A: Yes. The committee advised that the card and its envelope had to be clearly labeled "advertising" under DR 2-103(C)(1), and a copy retained for two years, because a mailed business card was no different from a soliciting letter.

Background and rules framework

The opinion applied the predecessor disciplinary rules DR 2-103(B) and (C), which correspond to Model Rule 7.3 (solicitation of clients, including limits on contacting vulnerable prospective clients and the labeling and retention requirements for written solicitation). The committee relied on the comment of the SJC's Committee on Lawyer Solicitation.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.3 / DR 2-103(B), (C) (solicitation; vulnerable prospective clients; "advertising" label and two-year retention)

Cases:

• Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995) (upholding a restriction on targeted solicitation of accident victims)

See also

• MA Bar Ethics Op. 98-2: Bar web directories and lawyer web sites
• MA Bar Ethics Op. 08-01: Referral networking clubs

Source

• Landing page: https://www.massbar.org/publications/ethics-opinions/ethics-opinion-article/ethics-opinions-1997-opinion-no-97-4/opinion-no-97-4