Requirements for Extraneous Statements on Envelope of Solicitation Letter
Opinion rules that a lawyer may put extraneous statements on the envelope of a solicitation letter provided the statements do not mislead the recipient and the font used for the statements is smaller than the font used for the advertising disclaimer required by Rule 7.3(c).
Editor's Note: The Ethics Committee is also proposing amendments to Rule 7.3(c) to clarify a lawyer's responsibilities relative to the advertising disclaimer and the envelope for targeted direct mail solicitation letters. The proposed amendments to the rule are published elsewhere in this Journal. If adopted, the amended rule would restrict extraneous statements to the back of the envelope and limit the size of the font for these statements.
After one of his employees goes to the court house to copy recent accident reports from the public records, Attorney A sends targeted direct mail letters to the people involved in the automobile accidents. The purpose of the letters is to solicit professional employment. Attorney A complies with the requirements of Rule 7.3(c) by including the words "This is an advertisement for legal services" on the outside envelope and at the beginning of the body of the letter in print as large as Attorney A's firm name in the return address and letterhead. Attorney A would like to include a copy of the accident report with each letter and put the statement "Accident Report Enclosed" on the envelope.
May Attorney A put the statement "Accident Report Enclosed" on the envelope of a targeted direct mail letter?
Rule 4.1 requires a lawyer to be truthful in his statements to others. As noted in comment  to Rule 4.1, "[m]isrepresentations can ...occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements." Although Attorney A includes a copy of the accident report in each solicitation letter, the statement "Accident Report Enclosed" implies that the solicitation letter is an official communication and omits the fact that the enclosed document is a copy of the public record. As a result, a recipient may believe that the solicitation letter is an official communication and open it without reading or heeding the advertising disclosure. The statement appears designed to mislead the recipient about the importance and purpose of the correspondence.
If extraneous statements, such as this, are put on the envelope of a solicitation letter, the statements must provide enough information to avoid misleading the recipient. Therefore, Attorney A may state on the envelope of a targeted direct mail letter that a copy of the accident report is enclosed but only if the statement makes clear that (1) the report is a copy of a public record and (2) the solicitation letter itself is not an official communication of a government agency.
What size font should be used for an extraneous statement on the envelope of a solicitation letter?
The purpose of the advertising disclaimer required by Rule 7.3(c) is to forewarn the recipient as to the nature of the communication. For this reason, the rule requires the disclaimer to be conspicuous by dictating that it must be in a font that is at least as large as the name of the lawyer or the firm name in the return address. However, if other statements on the envelope are in a font that is larger than the advertising disclaimer, the disclaimer will no longer be conspicuous. Therefore, to preserve the intent and purpose of Rule 7.3(c), the print used for the advertising disclaimer must be as large or larger than the print used for the name of the lawyer or the law firm in the return address and any other statement on the envelope.