If you use targeted direct mail to advertise your legal services in North Carolina, you may already know that Rule 7.3(c), the direct mail solicitation rule, was amended in October 2014. Some of you may even have received a courtesy letter from the NC State Bar, as a gentle nudge to get your mailers fixed to comply with the new rule. The amended Rule 7.3(c) reads as follows:
…every written, recorded, or electronic communication from a lawyer soliciting professional employment from anyone 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), which shall be conspicuous and 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 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.
(Emphasis added). What all this means is that you have to be sure that your advertising disclaimer on the front of your envelope and at the top of your letterhead is the most conspicuous printing anywhere on the outside of the envelope or in the letter. The Rule doesn’t prohibit photographs on the back of the envelope, logos on the front of the envelope, or brochures inside the envelope so long as the logos, photographs and brochures do not detract from the conspicuousness of the advertising disclaimers.
I’ve been reviewing attorney advertising for over 18 years, and I’m still having a bit of trouble trying to figure out when other printing, brochures, logos, or photographs may detract from the conspicuousness of the advertising disclaimer. Because this language is rather vague and subject to interpretation, I have been advising my clients to get their current advertising approved by the State Bar, even if it has been approved before. “Conspicuousness” may very well be in the eye of the beholder, and in this case, the beholder is the State Bar.