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Ethics Opinion #19
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Propriety of a direct mail solicitation, to prospective home sellers, indicating that the recipient “will find my fees reasonable” and that the lawyer “has travelled this
path (of buying or selling a home) many times.”
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RICHMOND COUNTY BAR ASSOCIATION
COMMITTEE ON PROFESSIONAL ETHICS
OPINION # 19
The Committee is in receipt of an inquiry from a local practitioner concerning the propriety of a certain letter, mailed by an attorney at law, to prospective home sellers. A copy of the letter is attached.
Direct mail solicitation is not per se prohibited by the Code
of Professional Responsibility and Disciplinary Rules, as a
result of a line of authority striking down such blanket prohibitions
(Bates v. State Bar of Arizona, 433 U.S. 350; Shapero
v. Kentucky Bar Association, 486 U.S. 466; In Re Von Wiegen,
63 NY2d 163, cert den 472 U.S. 1007) . However, such publicity
must not be false, deceptive, or misleading, nor cast adverse
reflection on the legal profession.
The letter in question states that the recipient “will find my fees reasonable” and that the writer “has travelled this path (of selling or buying a home) many times”. These representations can very well be construed as a claim that cannot be measured or verified, which is specifically prohibited by DR 2-101(B).
The letter also purports to represent what a “good attorney” will do to guide you through the process of selling a home. This is akin to a representation or statement of the attorney s philosophy of the practice of law, which is improper (NYS Bar Association, Comm. on Prof. Ethics, Op. #507) . It further purports to set forth the steps a “good attorney” will take in his representation of the recipient, including itemization of closing costs, study of prior closing documents and clear title objections. This may be construed as an attempt to provide unsolicited legal advise which is still prohibited (Nassau County Bar Association, Comm. on Prof. Ethics, No. 21/87)
The letter advises that the writer and his staff will “answer all (of) your questions” in the process. This strongly suggests an ability to answer questions of a non-legal nature concerning the purchase and sale of a home. This is improper (Nassau County Bar Association, Comm. on Prof. Ethics, No. 95-1) since it suggests expertise in those areas.
Finally, the Disciplinary Rules (2-101(F)) require a copy of this letter to have been filed with the Departmental Disciplinary Committee at the time of its mailing, and that the lawyer retain a list of the names and addresses of all persons to whom the letter was sent. There is no indication as to whether these rules have been complied with by the author of the letter.
For these reasons, the Committee concludes that the letter at issue runs afoul of the Disciplinary Rules for the reasons described herein.
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Wayne M. Ozzi
Chairman, Professional
Ethics Committee |
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