Targeted Direct-Mail Solicitation Letters: Homeowners' Association Inviting Attorney to Contact Property Owners

1 N.J.L. 17
January 27, 1992
 
130 N.J.L.J. 219
January 20, 1992
 

COMMITTEE ON ATTORNEY ADVERTISING
 
Appointed by the New Jersey Supreme Court
 

OPINION 11

Targeted Direct-Mail Solicitation
Letters: Homeowners' Association
Inviting Attorney to Contact Property Owners

This matter originated as a grievance filed by a member of the public against an attorney who sent targeted, direct-mail solicitation letters to the business administrator of, and later the property owners in, a retirement community. The grievance alleged that the solicitation letters, in which the attorney offered to represent the property owners in tax appeals, failed to comply with RPC 7.3(b)(4). Specifically, the grievance alleged that the letters failed to prominantly display the word "ADVERTISEMENT" in capital letters at the top of the first page of text and did not contain paragraphs concerning the importance of decisions regarding the choice of counsel and the reporting of inaccurate or misleading statements to the Committee on Attorney Advertising at the bottom of the last page of text.
Upon completing its initial review, the Committee determined that the solicitation did, in fact, violate RPC 7.3(b)(4). In lieu of formal action, a letter was sent to Respondent requesting that he discontinue the use of these letters and agree to include the language required by the rule in all such future letters. Although this matter was ultimately disposed of informally, the Committee determined that the issues warranted a formal advisory opinion.
According to Respondent, as a result of a change in the municipality's tax ratio, the retirement community's board of trustees requested proposals for the filing and prosecution of tax appeals from two lawyers. After choosing his proposal, the board of trustees invited Respondent to contact the property owners directly. Respondent then drafted and sent to the property owners a letter of introduction on the board's letterhead enclosing a letter of understanding/retainer agreement on his own letterhead.
Respondent argued that he should not be held responsible for the letter of introduction, which was sent out unsigned on the board's letterhead. Since the board had invited him to contact the individual property owners, and authorized the sending of the letter on its own stationery, Respondent asserted that the letter should be viewed as having been sent by the board and not him. That being the case, the letter would not be of the type contemplated by the rule. We disagreed.
Although the letter of introduction was authorized by and sent out on the letterhead of the board of trustees, the fact remains that it was written by and for the benefit of Respondent. The absence of a signature is of no moment. An attorney may not do indirectly that which would otherwise be prohibited if done directly. Opinion 8, 127 N.J.L.J. 753 (March 21, 1991). Appearances notwithstanding, the letter of introduction was, in essence, a solicitation letter authored and sent by Respondent and was therefore subject to the provisions of RPC 7.3(b)(4).
Additionally, many of the property owners were unaware that the board had solicited proposals and designated Respondent as its authorized attorney. Moreover, none of them were obligated to retain Respondent. Even though he was invited and authorized to contact the property owners directly, the letter of introduction and enclosed retainer were his initial contacts with them. Consequently, the letter of introduction constituted direct contact with a prospective client concerning a specific event when such contact had pecuniary gain as a significant motive.
When an attorney initiates or participates in the dissemination of information that constitutes advertising, the attorney has an obligation to ensure that the information is properly identified as advertising, in accordance with RPC 7.3(b)(4). Therefore, in circumstances such as those presented here, the attorney should include an additional cover letter setting forth, or make certain that the body of the letter of introduction itself contains, the language required by the Rule. By way of example and not limitation, the attorney may wish to use the following language:
Distribution of information about an attorney (such as
that provided in the enclosed letter) (in this context)
constitutes advertising of legal services. Therefore,
the following notices must be provided:
1. Before making your choice of attorney, you should give this matter careful thought. The selection of an attorney is an important decision.
2. If you find anything in this letter inaccurate or
misleading, you may report same to the Committee on Attorney
Advertising, Hughes Justice Complex, CN 037, Trenton, New Jersey 08625.

Language such as this shall protect the rights of targeted recipients of information concerning attorneys.
* * *