WSBA 2001

Can a lawyer mail advertising brochures to a recently incarcerated person?

Short answer: Yes. The committee concluded that the rules do not prohibit a lawyer from soliciting a prospective client by mailing truthful, non-misleading advertisements, even to a recently incarcerated individual, where the lawyer does not know the person has counsel and the person has not asked not to be contacted; the rules make no reference to the prospective client's circumstances.

Apply this to your situation

This page answers the general question as of 2001. 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 Not binding precedent.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.

Plain-English summary

The inquiring lawyer asked whether, assuming the lawyer does not know that a recently incarcerated individual has a lawyer and the individual has not said they do not want to receive communications from the lawyer, the lawyer may send factual brochures advertising the lawyer's services to the recently incarcerated individual.

The committee answered yes. It said the Rules of Professional Conduct do not prohibit a lawyer from soliciting a prospective client by mailing truthful and non-misleading advertisements to the prospective client. It acknowledged some general concern about the appropriateness of soliciting prospective clients who are not in a strong position to decline the lawyer's services, but noted that the rules make no reference to the prospective client's circumstances. The committee observed that courts, other ethical governing bodies, and commentators have recognized that a lawyer has a First Amendment right to advertise, which includes targeted solicitation of prospective clients, and that the record-keeping obligations the rules impose on lawyer advertising act to police any misconduct in targeted solicitation.

Currency note

This opinion was issued in 2001, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. The advertising and solicitation rules, including the numbering of RPC 7.1 and 7.2, were revised in that process. 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 send advertising brochures to someone who was recently incarcerated?

A: Yes. The committee said the rules do not prohibit mailing truthful, non-misleading advertisements to the prospective client, assuming the lawyer does not know the person has a lawyer and the person has not asked not to be contacted.

Q: Does the prospect's vulnerable situation change the answer?

A: No. The committee acknowledged general concern about soliciting people not in a strong position to decline, but said the rules make no reference to the prospective client's circumstances.

Q: What did the committee cite to support targeted mail solicitation?

A: It said courts, ethics bodies, and commentators have recognized a lawyer's First Amendment right to advertise, including targeted solicitation, and that the rules' record-keeping obligations police any misconduct.

Background and rules framework

The opinion applies Washington RPC 7.1 (communications about a lawyer's services; Model Rule 7.1) and RPC 7.2 (advertising; Model Rule 7.2) to targeted direct-mail solicitation, and references RPC 4.2 (communication with a person represented by counsel; Model Rule 4.2) through the inquiry's assumption that the lawyer does not know the prospect is represented. The committee treated truthful, non-misleading mailed advertising as permissible without regard to the prospect's circumstances.

Citations and references

Rules of Professional Conduct:

Model Rule 7.1 / Washington RPC 7.1 (communications concerning a lawyer's services)
Model Rule 7.2 / Washington RPC 7.2 (advertising; record-keeping obligations)
Model Rule 4.2 / Washington RPC 4.2 (communication with a person represented by counsel)

Source

Landing page: https://ao.wsba.org/print.aspx?ID=1178

Original opinion text

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

Advisory Opinion: 1938
Year Issued: 2001
RPC(s): RPC 4.2; 7.1; 7.2
Subject: Sending unsolicited advertisement to incarcerated individual

The inquiring lawyer asks the following question: Assuming the lawyer does not know a recently incarcerated individual has a lawyer and the incarcerated individual has not informed the lawyer that he/she does not want to receive communication from the lawyer, may a lawyer send factual brochures to the recently incarcerated individual that advertises the lawyer’s services?

Yes. The Rules of Professional Responsibility (RPCs) do not prohibit a lawyer from soliciting a prospective client by mailing truthful and non-misleading advertisements to the prospective client. While there is some general concern regarding the appropriateness of soliciting prospective clients who are not in a strong position to decline the lawyer’s services, the RPCs make no reference to the prospective client’s circumstances. Courts, other ethical governing bodies and commentators have recognized that a lawyer has a First Amendment right to advertise his or her services, which includes a targeted solicitation to prospective clients. The record-keeping obligations imposed on lawyer advertising by the RPCs act to police any misconduct by the targeted solicitation.

Get today's answer for your situation

You just read a 2001 opinion on this question. Ezel checks the current rules of professional conduct in your state and answers your specific situation, with citations.

Opens in Ezel Pro. Every answer cites the rules it relies on.