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