Can a firm mail its brochure to people who attended a seminar its lawyers presented through a for-profit education company?

Plain-English summary

Members of a law firm conducted seminars through for-profit educational organizations and afterward mailed the firm's brochure to attendees, describing the availability and nature of the firm's services. The question was whether sending those brochures was ethically permissible.

The committee said Rule 7.3 prohibits only in-person or live telephone solicitation of persons with whom the lawyer has had no prior professional relationship, and that solicitation by mail is permitted so long as the material is not false or misleading, contains all appropriate disclosures, and is filed with the Board of Commissioners on Grievances and Discipline as Rule 7.3 requires. Because the rule targets methods of solicitation likely to overwhelm or unduly influence a potential client, and mail does not present the same risks of abuse as live, in-person solicitation, the fact that a lawyer had earlier spoken to the recipients at a seminar did not add a significant risk of overreaching on these facts. The committee contrasted the former Code of Professional Responsibility, whose DR 2-104(A)(2) limited employment resulting from lay-education activities to programs sponsored by certain organizations not including for-profit entities, and noted that the current Rules contain no similar restriction, so the described practice appeared permissible if conducted in accordance with Rule 7.3.

Currency note

This opinion was issued in 1990, before the South Carolina Bar's adoption of the 2005 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 Treat this page as historical context, not current guidance.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: Can a lawyer mail marketing materials to seminar attendees?

A: The committee said yes, provided the mailing is not false or misleading, includes the required disclosures, and is filed as Rule 7.3 requires; mail solicitation is permitted, unlike in-person or live-telephone solicitation of strangers.

Q: Does it matter that the lawyer already spoke to the recipients at the seminar?

A: The committee said no significant additional risk of overreaching arose on these facts; prior seminar contact did not turn a permitted mailing into prohibited solicitation.

Q: Did the for-profit nature of the seminar sponsor matter?

A: The committee noted that the former Code restricted employment from lay-education programs not sponsored by certain organizations, but that the current Rules contain no comparable limit, so the for-profit sponsorship did not bar the practice.

Background and rules framework

The opinion applies Rule 7.3 (solicitation), corresponding to Model Rule 7.3, and contrasts it with the predecessor Code of Professional Responsibility, DR 2-104(A)(2). The committee read Rule 7.3 as drawing the line at the method of solicitation, permitting written mailings while restricting in-person and live-telephone contact with strangers.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 7.3 / Model Rule 7.3: prohibits in-person and live telephone solicitation of persons with no prior professional relationship; mail solicitation is permitted subject to disclosure and filing.

Other authorities:

• Former Code of Professional Responsibility, DR 2-104(A)(2) and DR 2-103, cited for the prior, more restrictive treatment of employment from lay-education activities.

See also

• SC Bar Ethics Op. 00-09: Free Public Legal Seminars
• SC Bar Ethics Op. 91-06: Soliciting Tax-Sale Buyers
• SC Bar Ethics Op. 90-36: Highway Patrol Referrals

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-90-37/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 90-37

Members of the Law Firm XYZ conduct seminars through for-profit educational organizations. After a seminar, the firm sends its firm brochure to attendees, advising them of the availability and nature of the law firm's services.

Question:
Is the practice of sending brochures to persons who attended the seminar ethically permissible?

Summary:
Solicitation by mail is permitted, so long as the solicitation is not misleading and complies with the disclosure requirements of Rule 7.3. It should not matter that a member of the soliciting law firm had previously spoken to the solicited person at a seminar.

Opinion:
Rule 7.3 prohibits only in-person or live telephone solicitation of persons with whom the lawyer has had no prior professional relationship. Solicitation by mail is permitted under the Rule, as long as the material is not false or misleading, contains all appropriate disclosures, and is filed with the Board of Commissioners on Grievances and Discipline as required by Rule 7.3.

Rule 7.3 is intended to prohibit solicitation only in situations when the method of solicitation is likely to overwhelm or unduly influence the potential client. Mail solicitation normally does not present the same risks for abuse as live, in-person solicitation. The fact that a lawyer previously may have spoken to individuals later solicited by mail does not seem to present any significant additional risk of overreaching, at least on the facts as described.

Under the prior Code of Professional Responsibility, which generally was far less permissive with regard to solicitation, DR 2-104(A)(2) permitted a lawyer to accept employment resulting from "participation in activities designed to educate laymen to recognize legal problems, to make intelligent selection of counsel, or to utilize available legal services" only if the program was sponsored by an organization described in DR 2-103, which did not include for-profit organizations. Similar language, however, is not included in the current Rules of Professional Conduct. Accordingly, the practice described appears to be permissible, so long as it is conducted in accordance with the regulations of Rule 7.3.