Advertisers Beware

June 23, 2004

Submitted by Douglas J. Brocker

Attorneys who utilize advertising and direct solicitation letters to market their practices should take note of recent changes and a proposed new change to the Revised Rules of Professional Conduct (hereafter ARevised Rules@). The State Bar has proposed a 30-day ban on certain types of solicitations. The State Bar also recently adopted two significant changes to the Revised Rules governing advertising.

First, Revised Rule 7.2(c) now requires that every advertisement include the name and office address of at least one lawyer or law firm responsible for its content. This new provision requires a physical office address–a post office box is not sufficient. This requirement applies to all forms of advertising, including radio and television ads, billboards, yellow pages, and direct mail solicitation letters. For example, this means that letterhead containing only a post office box cannot be used for direct mail solicitations, although it could be used for non-advertising purposes. This change has tripped up many attorneys who have not become familiar with the Revised Rules.

Second, the Revised Rules now explicitly permit advertising by electronic communication. Revised Rule 7.2, Comment [3]. Electronic advertising includes communications such as e-mails, websites, and electronic bulletin boards. Of course, such types of communications must comply with all the advertising requirements in the Revised Rules. Revised Rule 7.3(a), however, does not permit a lawyer to solicit professional employment by real time electronic contact. The State Bar views such real time contact as having the same potential for abuse as live telephone or in person solicitation. Revised Rule 7.3, Comment [2].

At its April quarterly meeting, the State Bar proposed the following significant revision to Revised Rule 7.3:

(b) A lawyer shall not solicit professional employment from a potential client by written, recorded, or electronic communication or by in-person, telephone or real time electronic contact even when not otherwise prohibited by paragraph (a) if:

. . .

(3) the communication concerns an action for personal injury or wrongful death arising out of, or otherwise related to, an accident or disaster involving the person to whom the communication is addressed, or a relative of that person, unless the communication is issued more than thirty (30) days after the accident or disaster. For purposes of this paragraph, a relative of the injured person is a spouse, child, grandchild, parent (or stepparent) sibling (or step-sibling) or grandparent.

If adopted, this proposed revision effectively would place a 30-day ban on targeted direct mail solicitations in personal injury and wrongful death matters. The State Bar proposed the revision in response to possible legislation, which would have had a longer and broader prohibition than the State Bar’s proposed rule. In 1996, the State Bar proposed a 30-day ban that applied to all solicitations, regardless of the legal services offered. The North Carolina Supreme Court declined to approve the State Bar’s 1996 proposal.

The State Bar’s current proposal is narrower in scope than the prior proposed ban. It is modeled after a Florida Bar rule, which was approved by the United States Supreme Court in Florida Bar v. Went for It, Inc., 515 U.S. 618 (1995). Any comments about the proposed rule change should be forwarded to Alice Mine at the State Bar at before the July 2004 quarterly meeting.