2004 Formal Ethics Opinion 2

April 23, 2004

Offer of Promotional Merchandise in a Targeted Direct Mail Solicitation Letter

Opinion rules that an attorney may not offer promotional merchandise in a targeted direct mail solicitation letter as an inducement to call the attorney's office.

Inquiry:

Attorney sends out targeted direct mail letters to accident victims. He would like to include in his letter an offer to send the recipient free promotional merchandise, such as a calculator, key chain, pen, coffee mug or similar object, if they call his office in response to the direct mailing. The promotional item would contain the firm's name and address and would be sent to the caller irrespective of whether the caller is accepted as a client.

May Attorney include an offer for promotional merchandise to callers in his targeted direct mail advertisements?

Opinion:

No. As a general proposition, it is not a violation of the Rules of Professional Conduct to include the name of a lawyer or law firm and contact information on merchandise such as t-shirts, mugs, pens, magnets, golf balls, etc. These objects do not solicit legal business themselves, but instead are just another type of media through which attorneys may advertise, like the yellow pages or a billboard. Rule 7.2(a).

A promise of promotional merchandise as an inducement to call the lawyer or law firm, however, is an improper solicitation. The recipient of the letter may call the lawyer for the purpose of receiving the promotional item, having no intent to initiate a lawyer- client relationship. But because the recipient initiated the call to the lawyer, the lawyer may then solicit that person directly over the telephone. Rule 7.3(a) prohibits lawyer-initiated live telephone solicitation of a prospective client because of the potential for abuse inherent in live telephone contact by a lawyer with a person known to be in need of legal services.

The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer's presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and overreaching.
  
Rule 7.3, cmt. [1]. Therefore, Attorney may not promise to send promotional merchandise to callers in a targeted direct mail solicitation letter. Nevertheless, an attorney may include promotional merchandise of minimal value (i.e., magnets and pens) in targeted direct mail letters.


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