Clarification of the Requirements for Targeted Direct Mail
Adopted: April 25, 2008
Opinion provides clarification of the technical requirements for targeted direct mail letters set forth in Rule 7.3(c) of the Rules of Professional Conduct.
Inquiry #1:
Rule 7.3(c) allows a lawyer to solicit professional employment from a potential client known to be in need of legal services by written, recorded, or electronic communication provided the statement, in capital letters, "THIS IS AN ADVERTISEMENT FOR LEGAL SERVICES" (the advertising notice) appears on a specified part of the communication. If the solicitation is by letter, Rule 7.3(c)(1) requires the advertising notice to "be printed at the beginning of the body of the letter in a font as large or larger than the lawyer's or law firm's name in the letterhead or masthead." Where must the advertising notice be placed in the letter to be "at the beginning of the body of the letter"?
Opinion #1:
Black's Law Dictionary, 5th Edition (1979), defines "[b]ody of an instrument" as follows: "The main and operative part; the substantive provisions, as distinguished from the recitals, title, jurat, etc." Consistent with this definition, the body of a letter is that part of the letter that appears below the salutation. However, the Rules of Professional Conduct, being rules of reason, should be interpreted and applied in a reasonable manner. Rule 0.2, Scope, cmt. [1]. Therefore, the requirement in Rule 7.3(c) that the advertising notice "be printed at the beginning of the body of the letter" is satisfied if the advertising notice appears anywhere between the top of the page to immediately below the salutation of a direct mail letter.
Inquiry #2:
Rule 7.3(c)(1) requires direct mail letters to potential clients to be placed in an envelope. The advertising notice must be printed on the front of the envelope, in a font that is as large as any other printing on the envelope and the front of the envelope "shall contain no printing other than the name of the lawyer or law firm and return address, the name and address of the recipient, and the advertising notice." Many law firms have designed a distinguishing sign or mark ("insignia") or special border that is used in conjunction with the firm's name wherever and whenever the firm name appears in print on official written communications on behalf of the firm such as letterhead. Examples of such insignia include a stylized version of the scales of justice or the surname initials of the named partners in a distinct enlarged font. May the front of the envelope for a direct mail letter contain an insignia or border connected with the firm name in the return address on the envelope if the insignia is a picture or symbol but does not contain any letters or printing?
Opinion #2:
Yes, if the insignia or border is used consistently by the firm in official communications on behalf of the firm, the insignia or border is considered a part of the firm name and may appear next to the firm name in the return address on the front of the envelope provided the advertising notice remains conspicuous.
Inquiry #3:
May the front of the envelope for a direct mail letter contain an insignia connected with the firm name in the return address on the front of the envelope if the insignia is a design that incorporates the surname initials of the named partners of the firm? If so, do the initials have to be in a font that is the same size or smaller than the advertising notice printed on the front of the envelope?
Opinion #3:
The front of the envelope may contain an insignia with initials that are in a font that is larger than the font used for the advertising notice provided the insignia is used consistently by the firm in official communications on behalf of the firm, the advertising notice is in a font that is the same size or larger than the font used for the firm name, and the advertising notice remains conspicuous.
Inquiry #4:
May an insignia appear on the back of the envelope and, if so, are there any restrictions on the size?
Opinion #4:
The insignia may appear on the back of the envelope subject to the requirements set forth in opinions #2 and #3 above.
Inquiry #5:
ABC Law Firm uses the motto "Attorneys for Injured People" and prints the motto just below its name in all of its official written communications. May the front of the envelope for a direct mail letter contain a motto connected with the law firm name in the return address on the envelope?
Opinion #5:
No. A motto will detract from the conspicuousness of the advertising notice. However, the motto may appear on the back of the envelope subject to the font size requirements in Rule 7.3(c).
Inquiry #6:
May the URL or website address for a law firm appear in the return address on the front of the envelope for a direct mail letter?
Opinion #6:
No. It may appear on the back of the envelope subject to the font size requirements in Rule 7.3(c).