The Supreme Court’s Committee on Attorney Advertising is overhauling guidelines that govern unsolicited, direct mailings.
Proposed changes were released for public comment on March 15.
Current Guideline 2(c) requires that in direct mail solicitations, the word "ADVERTISEMENT" be "prominently displayed" on the outside of the envelope or self-contained mailer only if the outside is "imprinted or stamped with any message relating to the subject matter of the solicitation." It was last amended in 2005 and is based on Rule of Professional Conduct 7.3(b)(5)(i).
An intervening change to the rule that took effect on Sept. 1, 2010, says the word "ADVERTISEMENT" must appear on the outside of every mailing "unless the lawyer has a family, close personal, or prior relationship with the recipient" — in other words, any unsolicited mailing.
The proposed guideline revision imports that requirement. It also specifies that the font be at least one size larger than anything else on the envelope and that "ADVERTISEMENT" be printed in boldface if anything else on the envelope is.
Further, if any mention of the mailing’s purpose appears on the envelope, it will have to contain the same two notices that must appear on the solicitation letters inside.
One is: "Before making your choice of attorney, you should give this matter careful thought. The selection of an attorney is an important decision."
The other notice advises recipients that an inaccurate or misleading letter can be reported to the committee, and provides the mailing address.
The requirement for notices on the outside of the envelope dates back to a July 17, 1996, committee advisory opinion that was never before incorporated into the guidelines.
Opinion 20 held that "if an attorney chooses to print or stamp on the face of an envelope a message relating to the subject matter of the correspondence inside, the attorney must ensure that the face of the envelope also bears the word ‘ADVERTISEMENT’ in capital letters and notice regarding the importance of one’s decision concerning the selection of an attorney and the reporting of inaccurate or misleading statements."
The committee’s reasoning was that by referring to the contents, "the sender converts the envelope into a distinct communication" subject to RPC 7.3.
Committee Chairwoman Cynthia Cappell, a Hackensack solo, was on vacation and could not be reached for comment on why the envelope notice requirement is being implemented now, almost 13 years after Opinion 20.
The notice of the proposed amendments states that the committee deems them "necessary in clarifying the application of the rules … "
David Rubin, chairman of the State Bar Association’s Professional Responsibility and Unlawful Practice Committee, says he agrees with the changes because "people who get unsolicited letters from lawyers in the mail should know before they open the envelope that it contains attorney advertising as opposed to, for example, a threat of a lawsuit against them."
If the envelope alerts them that it holds advertising, they can throw it out without opening it, says Rubin, a Metuchen solo.
He also agrees with putting the notices outside. "If you choose to make the outside of your envelope part of the advertisement itself, that advertising must also conform to the notices required of advertising in general."
He points out that "it will make for some crowded-looking envelopes."
Update Regarding Bona Fide Offices
Also proposed is an amendment to Guideline 1 that would reflect the recent elimination of the bona fide office requirement, a landmark change that took effect on Feb. 1.
Since lawyers are no longer required to maintain a regular office location, they would also no longer need to specify a bona fide street address in their advertising. A mailing address, telephone number or email address would suffice.
The committee is accepting comments on the proposals by mail or email until April 30.
The most recent change to the guidelines was a newly added No. 3 that took effect on June 1, 2012. It bans advertisements that selectively quote from judicial opinions praising a lawyer’s legal abilities or services but allows use of the full opinion.
Newark attorney Andrew Dwyer challenged the restriction on First Amendment grounds. The case, Dwyer v. Cappell, 12-cv-3146, is pending in federal court in Newark.