Opinion #85. Distribution of Newsletter to Non-clients

Issued by the Professional Ethics Commission

Date Issued: April 7, 1988

Pursuant to Maine Bar Rule 11(c)(1), Bar Counsel has requested an advisory opinion from the Professional Ethics Commission with respect to the following facts.

A law firm in another state prepares and distributes to clients and non‑clients in the State of Maine a newsletter which is apparently prepared by members of the law firm. The newsletter not only reports recent legislative enactments, regulatory agency rulings and court decisions, but also gives general descriptions of courses of action and alternatives its readers can consider when involved with a problem such as an unfriendly takeover bid of a corporation. In addition the newsletter suggests that its readers contact named members of the firm if they have further questions on a given news article. Finally, the newsletter devotes space describing recent seminars and educational activities that firm members have conducted or participated in. At the end of the publication is a statement that the newsletter does not constitute legal advice and suggests that readers consult with counsel to determine the applicability of any new development to their specific situation. It concludes with a final invitation to contact the firm for more information on any item discussed in the newsletter.

The question is whether the distribution of the newsletter to non‑clients of the firm violates any provision of the Maine Bar Rules.

Opinion

The Commission concludes that with one exception the distribution of the newsletter to non‑clients does not violate any Maine Bar Rule.[1]

Rule 3.9(a) prohibits “any form of public communication containing a false, fraudulent, misleading, or deceptive statement or claim.” Nothing in the statement of facts suggests that the newsletter contains any statement or claim that would violate this Rule. All articles in the newsletter were prepared by the law firm distributing it. No explicit statements or claims are made about the firm’s competence to handle any particular legal problem of a reader. The descriptions of the firm’s members’ participation in recent educational seminars is factual and does nothing more than to suggest that the firm attempts to keep up with new developments in the law—nothing unique to this law firm or particularly newsworthy, to be sure, but not likely to unduly influence the reader in their assessment of the firm’s legal abilities relative to its competition.

The next question is whether the newsletter is subject to the restrictions of Rule 3.9(f) relative to solicitation activities. While it might be argued that the newsletter is merely what it purports to be—a publication intended simply to convey general information of a legal nature—it is clear that it is designed to solicit employment for the firm. The admonition that the reader may need to take some action to comply with a change in a regulation, the identification of the individual authors of the articles, and the suggestion that these authors be contacted to discuss the matter more thoroughly, while perhaps subtle is nonetheless a form of solicitation that must stay within the bounds proscribed by Rule 3.9(f).

Neither the newsletter’s content nor its method of distribution suggests duress, intimidation, or vexatious or harassing conduct. The newsletter is simply sent through the mail and involves no follow up contact by the firm. The reader can simply throw it in the wastebasket without any fear of embarrassing consequences. While the newsletter does suggest that the firm can and will provide legal services for the reader relating to the matters discussed in the newsletter, that in and of itself does not constitute “unwarranted suggestions or promises of benefits” prohibited by the Rule. Nor can the Commission find in these circumstances an appreciable risk of undue influence by the firm or ill‑considered action by the readers of the newsletter.

The Commission, however, concludes in one respect the newsletter as prepared would violate Rule 3.9(e).[2] Although the firm apparently has offices in only one state,[3] it appears to serve clients in several states and does not confine its newsletter to matters of federal or its “home state” law. Case law in several state jurisdictions is discussed and analyzed. The Commission concludes that under the circumstances the newsletter should describe the jurisdictional limitations of the lawyers whose names appear in the publication.


Footnotes

[1] The facts do not indicate if the lawyers in the firm are licensed to practice in Maine. Consequently, this opinion need not address the question of whether the distribution of such a newsletter to Maine citizens by a lawyer or law firm which is not licensed to practice law in the State of Maine constitutes the unauthorized practice of law under 4 Maine Revised Statutes Annotated § 807, a question which in any event this Commission has no authority to answer.

[2] Rule 3.9(e) is as follows: Multi‑Jurisdictional Disclosure. A multi‑jurisdictional partnership shall disclose, in all public communications containing the names of lawyers affiliated with it, jurisdictional limitations of those lawyers not licensed to practice in the jurisdiction in which the communication is published.

[3] The facts do not indicate whether the firm is a partnership, professional corporation or otherwise. The Commission does not construe Rule 3.9(e) to mean only those firms that are technically partnerships. The prohibition must have been intended to apply to any association offering legal services to the public no matter what form the association takes.


Enduring Ethics Opinion

Enduring Ethics Opinion #85 [April 2015]