Since business and industry clients are perceived as less vulnerable to abuses of lawyer advertising, they have often been distinguished from less sophisticated users of legal services in regulation of lawyer advertising by lawyer discipline authorities. However, that distinction may be changing. A lawyer’s or law firm’s use of personalized direct mail letters to prospective business clients is addressed in opinion 2007-5 of the Board of Commissioners on Grievances and Discipline, issued June 8, 2007. The opinion discusses whether a lawyer’s advertising of legal services through a personalized letter to a prospective business client constitutes direct mail solicitation subject to the requirements of Rule 7.3(c), or a general announcement, which is not subject to strict regulation.
Direct mail solicitation letters are subject to the requirements of Rule 7.3(c) when a lawyer sends a letter seeking employment from a prospective client whom the lawyer "reasonably believes" to be in need of legal services in a "particular matter." The Rule's language may seem inapplicable to a lawyer sending a personalized advertisement to a business or industry client for "general" legal services. However, according to the Board opinion, Rule 7.3 is triggered by a lawyer's advertising of legal services through a personalized letter to a prospective business client, even without a reasonable belief of the potential client's needs in a particular matter. It is enough that a lawyer has a reasonable belief that the business would have a "general need" for legal services. The Rule 7.3(c) requirements for all direct mail solicitation letters covered by the Rule include:
- Full and accurate disclosure of how the identity of the prospective client was obtained.
- Inclusion in the text of the letter and on the outside of the envelope the phrase “Advertising Material” or “Advertisement Only.”
- Refraining from a predetermined evaluation of the merits of any legal matter involving the business person or entity.