TNBPR January 18, 1984

Could a Tennessee law firm mail brochures to clients and prospective clients without a request, and could lawyers or staff personally hand-deliver them?

Short answer: Mail yes, hand-delivery no. The opinion, clarifying 83-F-49, concluded a firm could distribute or mail brochures to regular and prospective clients even without a request, provided DR 2-101(C) and DR 2-101(M) were followed, but neither the lawyer, firm members, nor non-lawyer employees could personally deliver them. The Board vacated this opinion in 2015.

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This page answers the general question as of 1984. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Currency note

Vacated. The Board of Professional Responsibility vacated this opinion on September 11, 2015, "due to changes in the law or rules." It was adopted in January 1984, before Tennessee's adoption of the 2003 Rules of Professional Conduct (which replaced the former Code of Professional Responsibility) and against an early-1980s lawyer-advertising rule set that has since been substantially revised. It is reproduced and summarized here only as a historical research record, not as current guidance.

Plain-English summary

This opinion answered a request to clarify Formal Ethics Opinion 83-F-49, which had approved producing and distributing a law firm brochure to regular and prospective clients on request under Disciplinary Rules 2-101(C) and 2-101(M). The clarification posed ten specific questions about whether brochures could be distributed or mailed without a request, and whether lawyers or non-lawyer employees could personally deliver them.

The opinion discussed the United States Supreme Court's January 1982 decision in In re R.M.J., 102 S. Ct. 929, upholding a lawyer's right to mail professional announcement cards to non-clients on the reasoning that mailed communications involve no appreciable invasion of privacy and let recipients deliberate free from coercion, and noted that the Tennessee Supreme Court had responded on March 9, 1983 by amending the Code's publicity rules. It restated Disciplinary Rule 2-101(M), which permits handbills, circulars, and direct mail only if their contents comply with the print-media requirements and if the persons who deliver them are not the lawyer or members of the firm and do not engage in solicitation.

Applying those rules, the opinion concluded that a brochure could be distributed to regular and prospective clients without a request and could be sent to them by mail (questions 1, 2, 7, and 8 answered in the affirmative), provided DR 2-101(C) and DR 2-101(M) were strictly followed; but it could not be personally delivered by a lawyer, a firm member, or a non-lawyer employee at the lawyer's request (questions 3, 4, 5, and 6 answered in the negative). The permissible alternative delivery methods were those described in DR 2-101(M).

Common questions

Q: Could a firm mail brochures to clients and prospective clients who had not asked for them?

A: Yes, under the 1983 rules. The opinion answered the mail questions (7 and 8) and the unrequested-distribution questions (1 and 2) in the affirmative, "provided the requirements of DR 2-101(C) and 2-101(M) are strictly followed."

Q: Could a lawyer or staff member hand the brochure to clients in person?

A: No. The opinion answered questions 3, 4, 5, and 6 in the negative; DR 2-101(M) required that the persons delivering circulars and direct mail "are not the lawyer or associates or members of the law firm advertised, and do not engage in solicitation."

Q: Is this opinion still good guidance?

A: No. The Board of Professional Responsibility vacated it on September 11, 2015 "due to changes in the law or rules," and it predates Tennessee's 2003 Rules of Professional Conduct.

Background and rules framework

The opinion clarified Formal Ethics Opinion 83-F-49 and interpreted the Tennessee Code of Professional Responsibility's publicity rules (DR 2-102(A), DR 2-101(C), and DR 2-101(M)) as amended on March 9, 1983 in response to In re R.M.J. The modern correlates are Model Rule 7.1 (communications concerning a lawyer's services), Model Rule 7.2 (advertising), and Model Rule 7.3 (solicitation of clients), noted here as navigational cross-references rather than rules the opinion itself applied.

Citations and references

Rules of Professional Conduct:

DR 2-102(A), DR 2-101(C), DR 2-101(M), Tennessee Code of Professional Responsibility
Model Rule 7.1 (communications concerning a lawyer's services), Model Rule 7.2 (advertising), Model Rule 7.3 (solicitation of clients), modern correlates

Cases:

In re R.M.J., 102 S. Ct. 929 (1982), upholding a lawyer's right to mail professional announcement cards to non-clients

Other opinions cited:

Tennessee Formal Ethics Opinion 83-F-49, approving the brochure on request (the opinion clarified here)

Source

Landing page: https://www.tbpr.org/ethic_opinions/83-f-49a

Original opinion text

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

83-F-49(a) - Vacated*

*Vacated by the Board of Professional Responsibility on September 11, 2015 due to changes in the law or rules.

FORMAL ETHICS OPINION 83-F-49(a)

Inquiry is made for a clarification of Formal Ethics Opinion 83-F-49 relating to conditions and circumstances of distribution and delivery of a law firm brochure to regular and prospective clients.

Formal Ethics Opinion 83-F-49 states there is no impropriety in producing and distributing a law firm brochure to regular clients and/or prospective clients upon request provided the requirements of Disciplinary Rules 2-101(C) and 2-101(M) are strictly followed.

Request has now been made for a clarification of the opinion and, specifically, the following questions:

May a law firm brochure be distributed to regular clients without any request being made by these clients?
May a law firm brochure be distributed to prospective clients without any request being made by these clients?
May a lawyer personally deliver a law firm brochure to regular clients?
May a lawyer personally deliver a law firm brochure to prospective clients?
May a non-lawyer employee of the law firm, at the request of the lawyer, personally deliver a law firm brochure to regular clients?
May a non-lawyer employee of the law firm, at the request of the lawyer, personally deliver a law firm brochure to prospective clients?
May a lawyer send a law firm brochure by mail to regular clients?
May a lawyer send a law firm brochure by mail to prospective clients?
How may a law firm brochure be appropriately delivered to regular clients other than by the methods specified in questions 3, 5 and 7?
How may a law firm brochure be appropriately delivered to prospective clients other than by the methods specified in questions 4, 6 and 8?

In January, 1982, the United States Supreme Court in the case of In Re: R.M.J., 102 S. Ct. 929, upheld a lawyer's right to mail professional announcement cards to non-clients. The Court reasoned that communications by mail involve no appreciable invasion of privacy and may, in fact, be less threatening or intrusive than aggressive multimedia advertising campaigns. The public can scrutinize letters carefully and recipients can deliberate and make decisions free from pressures and without being subjected to coercion, duress or harassment by a lawyer who solicits business personally.

The Tennessee Supreme Court responded to the R.M.J. decision on March 9, 1983 by amending the publicity rules of the Code of Professional Responsibility. The appropriate rules relating to the questions raised herein are Disciplinary Rules 2-102(A), 2-101(C) and 2-101(M), which are cited and quoted in Formal Ethics Opinion 83-F-49.

The intent and thrust of the recent decisions and rule changes are to foster informed decision making by potential consumers of legal services while safeguarding privacy and protecting against overreaching by lawyers.

It is appropriate to again state the provisions of Disciplinary Rule 2-101(M):

(M) Lawyers may advertise in established and regularly published print media and over established electronic media. Handbills, circulars, direct mail, or the like may be used, but only if the contents comply with all requirements that pertain to the print media, and if the persons who deliver the handbills, circulars, direct mail, and the like are not the lawyer or associates or members of the law firm advertised, and do not engage in solicitation.

Therefore, questions 1, 2, 7 and 8 are answered in the affirmative, provided the requirements of DR 2-101(C) and 2-101(M) are strictly followed.

Questions 3, 4, 5 and 6 are answered in the negative.

Questions 9 and 10 are answered by reference to DR 2-101(M).

This 18th day of January, 1984.

ETHICS COMMITTEE:

O. B. Hofstetter, Jr.

F. Evans Harvill

William R. Willis

APPROVED AND ADOPTED BY THE BOARD

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