Can a North Carolina lawyer print extra statements, like 'Accident Report Enclosed,' on the envelope of a targeted direct-mail solicitation letter?

Plain-English summary

A lawyer sends targeted direct-mail letters to people involved in automobile accidents, soliciting employment after an employee copies the accident reports from the public records. The lawyer complies with Rule 7.3(c) by putting "This is an advertisement for legal services" on the envelope and at the start of the letter, in print as large as the firm name in the return address. He wants to enclose a copy of each accident report and add "Accident Report Enclosed" to the envelope.

On the first question, the opinion concludes the statement is permissible only if it is not misleading. Rule 4.1 requires truthfulness, and comment [1] notes that misrepresentation can occur through partially true but misleading statements or omissions. The opinion reasons that "Accident Report Enclosed," standing alone, implies the letter is an official communication and omits that the enclosure is a copy of a public record, so a recipient might open it without heeding the advertising disclosure. Any extraneous statement on the envelope must give enough information to avoid misleading the recipient. The lawyer may state that a copy of the accident report is enclosed only if the statement makes clear that (1) the report is a copy of a public record and (2) the solicitation letter is not an official communication of a government agency.

On the second question (font size), the opinion concludes the advertising disclaimer must remain conspicuous. Rule 7.3(c) requires the disclaimer to be at least as large as the lawyer's or firm's name in the return address. The opinion reasons that if other statements on the envelope are larger than the disclaimer, the disclaimer is no longer conspicuous, so the disclaimer's print must be as large as or larger than the return-address name and any other statement on the envelope.

In practice

Under the North Carolina rules as they stood at the time of the opinion, the analysis turns on whether an envelope statement misleads the recipient about the nature of the mailing. The opinion holds that "Accident Report Enclosed" is permissible only when paired with language clarifying that the report is a public-record copy and that the letter is not an official government communication.

Per the opinion, the Rule 7.3(c) disclaimer must stay the most or equally prominent text on the envelope: its print must be at least as large as the return-address name and any other statement that appears there.

Common questions

Q: Can a lawyer put "Accident Report Enclosed" on a direct-mail solicitation envelope?

A: Yes, but only if the statement makes clear the report is a copy of a public record and the letter is not an official communication of a government agency. Otherwise the opinion concludes it misleads the recipient in violation of Rule 4.1.

Q: How large must the advertising disclaimer be when the envelope carries other statements?

A: At least as large as the lawyer's or firm's name in the return address and at least as large as any other statement on the envelope, so the Rule 7.3(c) disclaimer stays conspicuous.

Q: Why does adding "Accident Report Enclosed" raise a problem at all?

A: The opinion reasons the phrase implies the mailing is an official communication and omits that the enclosure is just a public-record copy, which could lead a recipient to open it without noticing the advertising disclosure.

Background and rules framework

The opinion interprets Rule 7.3(c) (the advertising disclaimer for targeted direct-mail solicitation, corresponding to Model Rule 7.3) together with Rule 4.1 (truthfulness in statements to others, corresponding to Model Rule 4.1). An editor's note records that the Ethics Committee was also proposing amendments to Rule 7.3(c) to restrict extraneous statements to the back of the envelope and limit their font size.

Citations and references

Rules of Professional Conduct:

• MR 7.3 / NC Rule 7.3(c) (advertising disclaimer on targeted direct-mail solicitation)
• MR 4.1 / NC Rule 4.1 (truthfulness in statements to others; comment [1] on misleading omissions)

See also

• ABA Formal Op. 501: Solicitation
• Alabama Ethics Op. 1996-05: Direct Mail Advertising
• CA COPRAC Op. 1995-142: Truthful Direct-Mail Marketing

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2006-formal-ethics-opinion-6/

Original opinion text

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

Editor's Note: The Ethics Committee is also proposing amendments to Rule 7.3(c) to clarify a lawyer's responsibilities relative to the advertising disclaimer and the envelope for targeted direct mail solicitation letters. The proposed amendments to the rule are published elsewhere in this Journal. If adopted, the amended rule would restrict extraneous statements to the back of the envelope and limit the size of the font for these statements.

Inquiry #1:

After one of his employees goes to the court house to copy recent accident reports from the public records, Attorney A sends targeted direct mail letters to the people involved in the automobile accidents. The purpose of the letters is to solicit professional employment. Attorney A complies with the requirements of Rule 7.3(c) by including the words "This is an advertisement for legal services" on the outside envelope and at the beginning of the body of the letter in print as large as Attorney A's firm name in the return address and letterhead. Attorney A would like to include a copy of the accident report with each letter and put the statement "Accident Report Enclosed" on the envelope.

May Attorney A put the statement "Accident Report Enclosed" on the envelope of a targeted direct mail letter?

Opinion #1:

Rule 4.1 requires a lawyer to be truthful in his statements to others. As noted in comment [1] to Rule 4.1, "[m]isrepresentations can ...occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements." Although Attorney A includes a copy of the accident report in each solicitation letter, the statement "Accident Report Enclosed" implies that the solicitation letter is an official communication and omits the fact that the enclosed document is a copy of the public record. As a result, a recipient may believe that the solicitation letter is an official communication and open it without reading or heeding the advertising disclosure. The statement appears designed to mislead the recipient about the importance and purpose of the correspondence.

If extraneous statements, such as this, are put on the envelope of a solicitation letter, the statements must provide enough information to avoid misleading the recipient. Therefore, Attorney A may state on the envelope of a targeted direct mail letter that a copy of the accident report is enclosed but only if the statement makes clear that (1) the report is a copy of a public record and (2) the solicitation letter itself is not an official communication of a government agency.

Inquiry #2:

What size font should be used for an extraneous statement on the envelope of a solicitation letter?

Opinion #2:

The purpose of the advertising disclaimer required by Rule 7.3(c) is to forewarn the recipient as to the nature of the communication. For this reason, the rule requires the disclaimer to be conspicuous by dictating that it must be in a font that is at least as large as the name of the lawyer or the firm name in the return address. However, if other statements on the envelope are in a font that is larger than the advertising disclaimer, the disclaimer will no longer be conspicuous. Therefore, to preserve the intent and purpose of Rule 7.3(c), the print used for the advertising disclaimer must be as large or larger than the print used for the name of the lawyer or the law firm in the return address and any other statement on the envelope.