One requirement of ethics Rule 7.3(c) is that the prospective client must be "known to be in need of legal services in a particular matter." Thus, arrest dockets are a valid source, the opinion finds. O'Connell, the assistant bar counsel, said lawyers also have used lists of people facing foreclosure, which satisfies the same "need" requirement.
Criminal defense lawyer Richard Brown said he's observing more aggressive tactics to locate clients, driven by a sluggish economy. "It's been going on for two or three years. In the criminal defense bar we have poachers, people who otherwise are engaged in other areas [of law] they've seen decline, and think they can come and dabble in this particular area, and they do."
Secondly, he said, "is that there is without question a significant price war going on, where lawyers are attempting to undercut other lawyers," he said. This is true, he says, "particularly in DWI cases."
Brown isn't alarmed. "My personal philosophy is, it's America. If you want to go undercut some other lawyer, I don't care, personally. It doesn't mean anything to me. There are plenty of lawyers cheaper than me, and plenty who are more expensive than me. I just charge what I believe to be fair."
By the same token, he says, there is no doubt that "lawyers are becoming more aggressive, and using the letters or other means to suggest to clients that we can charge less. It's done in other areas of professional services. It's the new reality."
New Haven lawyer William Dow, of Jacobs & Dow, isn't keen about the new direct mail approach. He began practicing law in 1968, nine years before the U.S. Supreme Court, in Bates v. State Bar of Arizona, ruled lawyer advertising was constitutionally protected commercial speech.
Dow noted that the issue of lawyers attempting to dig up potential clients from public documents hit the courts in a 2006 Connecticut Supreme Court case that became famous for other reasons. The matter of Clerk of G.A. 7 v. FOIC was started by Russell Collins, a lawyer who had come from Texas to Connecticut. He attempted to use the state's Freedom of Information Act to get the names of new criminal defendants from a court database. Collins was hoping to launch a "jail mail" advertising campaign of his own.
The majority opinion, penned by Justice Peter T. Zarella, ruled the information was not available through an FOIA request.
Infamously, that decision was held up from normal release by then Chief Justice William J. "Tocco" Sullivan, in an attempt to smooth the way for Zarella's pending nomination to succeed Sullivan as chief justice. What began as a helpful gesture blew up into a scandal. Democratic lawmakers viewed Sullivan's action as an obstruction of the process of legislative review of judicial nominees. Ultimately, the case triggered a dramatic and sustained clash between the Legislature and the judicial branch.
So far, the "jail mail" trend hasn't caused legal or ethical difficulties for any of the workaday solos and small-firm lawyers who have been using it. In fact, it's only judicial branch casualty was at the top. As Dow noted, "It certainly got Tocco into trouble."