Does a lawyer's mailed brochure that contains only information allowed by the advertising rule still have to follow the direct-solicitation rule?

Plain-English summary

A certified-specialist lawyer wished to mail local residents a brochure describing his background, certification, the types of cases he accepts, and his fee schedule, all categories of information the advertising rule permits. He asked whether, because the brochure contained only Rule 7.2-permitted information, it still had to comply with the solicitation rule's requirements in Rule 7.3(b) and (c), or whether Rule 7.2 stood independent of Rule 7.3.

The committee concluded Rule 7.2 is not independent of Rule 7.3. Every communication allowed by Rule 7.2 is expressly subject to Rules 7.1 and 7.3, so it must avoid false or misleading statements (Rule 7.1) and satisfy Rule 7.3; the Rule 7.2 comment lists permissible content but creates no exception. The brochure therefore must comply with Rule 7.3(b), which bars soliciting a prospective client who has made known a desire not to be solicited and bars coercion, duress, or harassment. The Rule 7.3(c) notices, by contrast, apply only to solicitation of "a prospective client known to be in need of legal services in a particular matter": if the brochures go to persons not yet known to need legal services, those notices are not required; if they go to persons known to need legal services and with whom the lawyer has no prior family or professional relationship, the notices are required despite the limited content.

Currency note

This opinion was issued in 1994, 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 Treat this page as historical context, not current guidance.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: Does Rule 7.2-compliant content exempt a mailing from the solicitation rule?

A: No. The committee held every Rule 7.2 communication is subject to Rules 7.1 and 7.3; the advertising rule does not stand independent of the solicitation rule.

Q: When are the Rule 7.3(c) notices required on the brochure?

A: Only when the brochure is sent to a recipient known to be in need of legal services in a particular matter and with whom the lawyer has no prior family or professional relationship.

Q: What does Rule 7.3(b) require of any mailed solicitation?

A: It bars soliciting a prospective client who has said he does not want to be solicited, and bars any solicitation involving coercion, duress, or harassment.

Background and rules framework

The opinion read Rule 7.2 (advertising) together with Rule 7.1 (communications concerning a lawyer's services) and Rule 7.3 (direct contact with prospective clients), holding the latter two govern all Rule 7.2 communications. The South Carolina rule numbers correspond to the like-numbered Model Rules as they existed in 1994.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 7.2 / Model Rule 7.2: advertising.
• South Carolina RPC 7.3 / Model Rule 7.3: direct contact with prospective clients (Rule 7.3(b) and (c)).
• South Carolina RPC 7.1 / Model Rule 7.1: false or misleading communications.

See also

• SC Bar Ethics Op. 94-27: Practicing Law Through an Online Service
• SC Bar Ethics Op. 94-36: State Seal on a Lawyer's Card

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-94-26/

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 94-26

Lawyer L, who is a certified specialist, wishes to mail a brochure to various local residents, describing L's practice and the legal services offered. The brochure would be limited to a general discussion of L's educational background and qualifications, including specifically L's certification, as well as a description of the types of cases accepted, and L's fee schedule.

Question:
If a written communication to someone with whom the lawyer has no prior family or professional relationship includes only certain types of information specifically permitted under Rule 7.2 and its comments, must Lawyer L still comply with Rule 7.3(b) and include the language required by Rule 7.3(c)(2) or does Rule 7.2 then stand independent of Rule 7.3?

Summary:
Rule 7.3 applies to all advertising and solicitations of professional employment. Lawyer L must, therefore, comply with the limitations of Rule 7.3(b). Rule 7.3(c), however, requires certain notices only if the communication is made to persons known to be in need of legal services and if the lawyer has no prior family or professional relationship with the recipient.

Opinion:
Rule 7.2 generally permits media advertising as well as written or recorded communications with prospective clients. Every communication allowed under Rule 7.2, however, is expressly subject to the limitations and regulations of Rules 7.1 and 7.3. No exception exists. Therefore, every such communication must avoid false or misleading statements that would violate Rule 7.1 and must comply with the disclosure requirements of Rule 7.3. The Comment to Rule 7.2 merely describes certain categories of information that may be disseminated under Rule 7.2 and does not create an exception to Rule 7.3.

The inquiry specifically asks about the application of Rule 7.3(b) and (c) to the communication proposed. Every written solicitation of professional employment made to a prospective client must comply with Rule 7.3(b)(1), which prohibits any solicitation of a prospective client who "has made known to the lawyer a desire not to be solicited." Also, no solicitation may involve "coercion, duress or harassment" in violation of Rule 7.3(b)(2). Rule 7.3(c) applies only to solicitation of "a prospective client known to be in need of legal services in a particular matter." Therefore, if the brochures were distributed to persons not yet known by the lawyer to be in need of legal services, the notices set forth in Rule 7.3(c) would not be required. If the brochures were mailed to persons known to be in need of legal services and if the lawyer had no prior family or professional relationship with the recipient, then the notices would be required, even with the limited editorial content described in the inquiry.