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RICHMOND COUNTY BAR ASSOCIATION
COMMITTEE ON PROFESSIONAL ETHICS
OPINION # 27
June 1, 2000
The Committee is in receipt of a two-part inquiry which may be posed as follows:
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“May an attorney direct mail advertise to former clients andlor to geographic areas of the county in which the lawyer practices together with other professionals such as real estate brokers, banks, and accountants?”
“Are there any prohibitions on the attorney against sharing his or
her ‘nailing list with other professionals?”
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As a general rule, advertisements may be mailed to anyone, including targeted
recipients, subject to the filing and retention requirements
of DR 2-101(F), and the attorney may accept representation arising
out of such solicitation. The recipient need not be a current
client (NYSBA Committee on Professional Ethics, Op. #676). The
fact that the advertisement may be distributed by non-lawyers
is of no moment (see, NYSBA, Committee on Professional Ethics,
Op. #659). However, care should be taken that the advertisements
are not misleading or false, (DR 2-101(A)), and in particular,
that the advertisement does not suggest in any way that the
lawyer is associated with the other professionals. The advertisement
should not suggest, in form or in content, that the lawyer and
any participating non-lawyers are providing their respective
services jointly or in association (see, NYSBA, Committee on
Professional Ethics, Op. #633; see also, Op. #557, and In
Re Schenk. 171 AD2d 33), or that the non-lawyers are endorsing
or suggesting the lawyer s services (Op. #659, supra).
Presumably, the lawyer and the non-lawyers will share the expenses of any such mailings, for which there is no express prohibition. Again, however, care must be taken to avoid the appearance that there is an arrangement that legal business will be fed to the lawyer by the non- lawyers. When expenses are shared, the situation is fraught with the danger of such an appearance (see e.g., NYSBA, Committee on Professional Ethics, Op. #206). In Opinion #206, a lawyer shared a telephone answering service, reception serVices, and a common waiting room with a tenant/real estate broker. The opinion concluded that “unless the lawyer can establish that no such (feeder) relationship exists, or unless he refrains from accepting clients who come to him through the real estate agent, he should not have such a tenant”.
On the sharing of mailing lists, the question arises as to whether this may constitute the revelation of a confidence or secret of the client (DR 4-101 (B)). A “confidence” refers to information protected by the attorney-client privilege under applicable law. The committee cannot answer questions of law but it does note That courts generally hold that the attorney-client privilege does not extend to the identity of the client, because disclosure thereof does not reveal the content of any communications between the two, and such information isusually not revealed by the client for the specific purpose of obtaining legal advice (see, NYSBA, Committee on Professional Ethics, Op. #645, and citations therein).
Subject to the conditions and caveats indicated, the first question is answered in the affirmative; the second question is answered in the negative.
Pursuant to Article VI Section 19 of the R.C.B.A. By-Laws, please be advised that the statements contained herein express the opinion of the committee alone, and have not been passed upon by the Association.
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Wayne M. Ozzi
Chairman, Professional
Ethics Committee |
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