MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1990-40
Advertising/Solicitation Letters & calls to prospective clients by attorney working under auspices of public or charitable legal services organization
Your letter raises three questions concerning the propriety of written and telephonic communications with persons who may have a need for legal services arising out of certain allegedly improper home improvement practices by certain contractors. Your first question deals with the propriety of letters written by private attorneys, such as yourself on their own stationery, and you have attached samples of such letters to your inquiry. It has not been the practice of the Ethics Committee in the past to review proposed letters and/or advertisements for legal sufficiency, although the Committee at times has pointed out problems of a more serious nature which appear on the face of such proposed communications. With respect to your proposed communications from private attorneys, the Committee does not see any particular problem on the face of such letters. We can only point out that such communications must comply with Rule 7.1(a) concerning the need for accuracy with respect to all representations set forth in your proposed letters. Furthermore, the communications must comply with the "advertising requirements of Rule 7.2, such as the need to retain a copy for three years, the requirement that any communication include the name of at least one lawyer responsible for it s content, and all other requirements set forth in Rule 7.2
Your second inquiry concerns similar communications coming from a non-profit legal services program, in which the recipients of the communications are advised of potential improper home improvement practices and of the fact that they may want to discuss the matter further with one of the attorneys associated with the legal services program. Again, without giving you a complete stamp of approval as to the form of the letters, the Committee fails to see any significant problem with any of the forms As stated above, however, it is critical that all statements of fact in the letters must be accurate in order to satisfy Rule 7.1(a) and that the advertising requirements in Rule 7.2 are followed.
Finally, you inquire as to the propriety of the staff of the non-profit legal services organization telephoning those homeowners whom the organization believes will not be able to read or understand a written communication. Rule 7.3(a) (3) provides that 'a lawyer may initiate in person contact with a prospective client for the purpose of obtaining professional employment only in the following circumstances and subject to the requirements of paragraph (b):…(2) under the auspices of a public or charitable legalservices organization." Your letter is not clear as to whether the "staff" who will be making these phone calls will be lawyers or non-lawyers, but we do not believe that in the context of your inquiry it would make any difference. We believe that because of the organization which will be contacting the homeowners by phone comes within the definition of a "public or charitable legal services organization" (based on the representations in your letter), such in-person contact is proper, whether made by a lawyer or a non-lawyer. Of course, the substance of the telephonic contacts must comply with all other provisions of the Rules of Professional Conduct. Rule 7.3(b) prohibits in-person contact in three situations:
"(1) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer;
(2) the person has made known to the lawyer a desire not to receive communications from the lawyer; or
(3) the communications involves coercion, duress, or harassment."
In your letter you point out recent opinions of the United States Supreme Court and Court of Appeals of Maryland, which, taken together, raise questions concerning the constitutionality of Rule 7.3(b) (1). See Shapero v. Kentucky Bar Association, 108 S.Ct. 1916 (1988); and Unnamed Attorney v. Attorney Grievance Commission, 313 Md. 357 (1988). It is beyond the authority of this Committee to opine as the constitutionality of any of the Rules of Professional Conduct. We can only point out to you the applicable Rules in response to your inquiry. Obviously, if you comply with Rule 7.3(b) there will be no problem with the telephone communications, and we must leave it to you to challenge the constitutionality of such provisions if there are any alleged violations of the Rule.