Opinion 88-25
(August 1988)

Your request for guidance, dated June 24, 1988, was presented to the Professional Guidance Committee at its monthly meeting on July 18, 1988. This constitutes the formal opinion of the Committee.

You propose to use a direct mail solicitation advertisement which will be sent to the current and potential "pre-need" customers of a local cemetery. In doing so, you will avoid contact with persons who have recently suffered a loss.

In your letter of inquiry you indicate that you are aware of the provision of Rule 7.3(b) which provides in part that:

A lawyer shall not contact or send a written communication to a prospective client for the purpose of obtaining professional employment if:

(1) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that person could not exercise reasonable judgment in employing a lawyer....

Obviously, your direct mail solicitation should not go to families recently bereaved, for to do so would violate this rule.

In addition, you indicate that you propose to pay an advertising fee to the cemetery, said fee not being contingent in any way upon the business obtained by the advertising. The fee that you do pay however, must comply with Rule 7.2, which provides in part that:

A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may pay the reasonable cost of advertising or written communication permitted by this rule ...." (emphasis added)

Although direct mail solicitation has been permitted in Pennsylvania for the past several years, its future had been uncertain because of the pending case of Shapero vs. the Kentucky Bar Association, U.S., 108 S.Ct. Rep. 1916 (1988). Since the Shapero decision, it is clear that direct mail solicitation is not only permissible and a protected form of commercial free speech, but also that its future will be one of expansion as opposed to limitation. As such, the Committee is of the opinion that your proposed mailing would be permissible and protected direct mail solicitation.

The Committee felt it important to note that even though your mode of advertisement is in a permissible form, you must be cautioned to adhere to the provisions in the Rules Professional Conduct which regulate the content of all forms of attorney advertising.

Briefly reviewed, Rule 7.1 provides that the advertisement must not be false or misleading, and defines those terms. Rule 7.2 relates to record keeping regarding advertisement, as well as avoidance of paying for referrals other than the reasonable costs of advertising, (discussed above); Rule 7.4 relates to communicating the fields in which your firm practices, and does not permit any explicit or implied statement of specialization except of patent and admiralty attorneys; and, Rule 7.5 governs firm names and letterheads. Any advertisement which you mail to clients should be carefully reviewed in order to assure compliance with these rules.
The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.