Ethics Opinion Articles - NC State Bar Journal

“Who You Gonna’ Call?” New Admittee’s FAQs, Part Three

One of the ethics rules that causes the most consternation for lawyers and members of the State Bar’s grievance department is Rule 7.3. The particular culprit is Rule 7.3(c), dealing with written, recorded, or electronic “targeted communications.”

Rule 7.3(c) provides:

(c) Targeted Communications. Unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2), every written, recorded, or electronic communication from a lawyer soliciting professional employment from a potential client known to be in need of legal services in a particular matter shall include the statement, in capital letters, “THIS IS AN ADVERTISEMENT FOR LEGAL SERVICES” (the advertising notice) subject to the following requirements:

(1) Written Communications. Written communications shall be mailed in an envelope. The advertising notice shall be printed on the front of the envelope, in a font that is as large as any other printing on the envelope. The front of the envelope shall contain no printing other than the name of the lawyer or law firm and return address, the name and address of the recipient, and the advertising notice. The advertising notice shall also be printed at the beginning of the body of the letter in a font as large as or larger than any other printing contained in the letter.

The first source of confusion tends to be whether or not a particular communication is a “targeted” communication requiring the advertising notice.

Pursuant to Rule 7.3, a communication is “targeted” if it (1) is sent from a lawyer; (2) to solicit professional employment from; (3) an individual who is not a lawyer and does not have a family, close personal, or prior professional relationship with the lawyer; and (4) the individual is known to be in need of legal services in a particular matter. See Rule 7.3(a) and (c). If any one of these four factors is not present, the communication is not targeted and the communication does not have to contain the advertising notice.

RPC 98 provides clarification as to whether a communication is sent to an individual known to be in need to legal services “in a particular matter”:

For the purposes of [Rule 7.3], the term “in a particular matter,” has reference to discrete factual incidents directly involving the prospective client of which the communicating lawyer has acquired knowledge. The rule was not intended to apply to communications sent to clients who, because of their mere existence in a complex and ever-changing legal environment, may need legal advice and assistance in maintaining compliance with existing law.

A classic example of a targeted communication is one sent to the recent recipient of a speeding ticket offering to handle the ticket. In contrast, a letter of introduction sent to everyone in a particular zip code offering services related to speeding tickets, does not require the advertising notice.

Another source of confusion, somewhat inexplicably, is the requirement that written targeted communications must be mailed in an envelope. Comment [7] to Rule 7.3(c) reiterates that “[p]ostcards may not be used for targeted mail solicitations.” This requirement protects private and/or potentially embarrassing information from disclosure to third parties. Not sure what else I can say about it. If you have questions, give me a call.

Moving on. Rule 7.3(c) provides that the front of the envelope cannot contain any printing “other than the name of the lawyer or law firm and return address, the name and address of the recipient, and the advertising notice.” 2007 FEO 5 was adopted as a result of uncertainty as to this particular prohibition. 2007 FEO 5 provides that the front of an envelope may display an insignia or border used in connection with the law firm’s name, if the insignia or border is used consistently by the firm in official communications on behalf of the firm. Mottos and website addresses are still a no-no on the front of the envelope. Id. These items, as well as other extraneous statements, may be printed on the back of the envelope so long as they comply with the printing requirements discussed below.

As to the “stuffing” of the envelope, Rule 7.3(c) currently provides the advertising notice must be “printed at the beginning of the body of the letter in a font as large as or larger than any other printing contained in the letter.” Because of confusion as to the required location of the disclaimer, 2007 FEO 15 was adopted. 2007 FEO 15 clarifies what is meant by the “body” of the letter:

Black's Law Dictionary, 5th Edition (1979), defines “[b]ody of an instrument” as follows: “The main and operative part; the substantive provisions, as distinguished from the recitals, title, jurat, etc.” Consistent with this definition, the body of a letter is that part of the letter that appears below the salutation. However, the Rules of Professional Conduct, being rules of reason, should be interpreted and applied in a reasonable manner. Rule 0.2, Scope, cmt. [1]. Therefore, the requirement in Rule 7.3(c) that the advertising notice “be printed at the beginning of the body of the letter” is satisfied if the advertising notice appears anywhere between the top of the page to immediately below the salutation of a direct mail letter.

The most technical aspect of the rule pertains to the characteristics of the advertising notice itself. The current rule provides that the advertising notice must be printed in capital letters on the front of the envelope “in a font that is as large as any other printing on the envelope” and at the beginning of the body of the letter “in a font as large as or larger than any other printing contained in the letter.”

This particular requirement of the rule has, unfortunately, been the basis for numerous grievances filed against lawyers. In an effort to clarify this portion of the rule, a proposed rule amendment is pending. The purpose of the amendment is to specify that the advertising notice must be conspicuous and must match in size, color, and type the largest and widest of the fonts used on the front or back of the envelope or the enclosed written communication.

Why the need for such specificity? Because these two statements are the same font SIZE:

THIS IS AN ADVERTISEMENT FOR LEGAL SERVICES (Comic Sans – 10)
THIS IS AN ADVERTISEMENT FOR LEGAL SERVICES (Gabriola – 10)

And these two statements are the same font size and type:

THIS IS AN ADVERTISEMENT FOR LEGAL SERVICES (AGaramond – 10)
THIS IS AN ADVERTISEMENT FOR LEGAL SERVICES (AGaramond – 10)

Obviously, there are ways to manipulate the color and type of font to make fonts of the same size appear more or less conspicuous. Therefore, the proposed rule provides that the advertising notice must meet the following requirements:

The advertising notice shall be printed on the front of the envelope, in a font that is as large as any other printing on the front or the back of the envelope. If more than one color or type of font is used on the front or the back of the envelope, the font used for the advertising notice shall match in color, type, and size the largest and widest of the fonts. The front of the envelope shall contain no printing other than the name of the lawyer or law firm and return address, the name and address of the recipient, and the advertising notice. The advertising notice shall also be printed at the beginning of the body of the enclosed written communication in a font as large as or larger than any other printing contained in the enclosed written communication. If more than one color or type of font is used on the enclosed written communication, then the font of the advertising notice shall match in color, type, and size the largest and widest of the fonts. Nothing on the envelope or the enclosed written communication shall be more conspicuous than the advertising notice.

Proposed Amendment to Rule 7.3(c) as published in State Bar Journal, Fall 2013.

The goal is conspicuousness for the advertising notice. To drive this point home, the proposed amendment to comment [7] to Rule 7.3(c) provides, in part:

[The advertising notice] must appear on the front of the envelope with no other distracting extraneous written statements other than the name and address of the recipient and the name and return address of the lawyer or firm...On any paper or electronic communication required by this rule to contain the advertising notice, the notice must be conspicuous and should not be obscured by other objects or printing or by manipulating fonts. For example, inclusion of a large photograph or graphic image on the communication may diminish the prominence of the advertising notice. Similarly, a font that is narrow or faint may render the advertising notice inconspicuous if the fonts used elsewhere in the communication are chubby or flamboyant. The font size requirement does not apply to a brochure enclosed with the written communication if the written communication contains the required notice. As explained in 2007 Formal Ethics Opinion 15, the font size requirement does not apply to an insignia or border used in connection with a law firm’s name if the insignia or border is used consistently by the firm in official communications on behalf of the firm. Nevertheless, any such insignia or border cannot be so large that it detracts from the conspicuousness of the advertising notice.

Id.

Clear as mud? We hope it is clearer. The proposed rule amendment will be presented to the North Carolina Supreme Court for approval after the State Bar Council meeting in January. Approval of the Court is anticipated in March 2014.

Suzanne Lever is assistant ethics counsel for the North Carolina State Bar.

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