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Ethics Rules for Direct Mail in Maryland
(a) Subject to the requirements of Rules 19-307.1 (7.1) and 19-307.3 (b) (7.3), an attorney may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor, radio or television advertising, or through communications not involving in person contact.
(b) A copy or recording of an advertisement or such other communication shall be kept for at least three years after its last dissemination along with a record of when and where it was used.
(c) An attorney shall not give anything of value to a person for recommending the attorney’s services, except that an attorney may:
(1) pay the reasonable cost of advertising or written communication permitted by this Rule;
(2) pay the usual charges of a legal service plan or a not-for-profit attorney referral service;
(3) pay for a law practice purchased in accordance with Rule 19-301.17 (1.17); and
(4) refer clients to a non-attorney professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the non-attorney professional to refer clients or customers to the attorney, if:
(A) the reciprocal agreement is not exclusive, and
(B) the client is informed of the existence and nature of the agreement.
(d) Any communication made pursuant to this Rule shall include the name of at least one attorney responsible for its content.
(e) An advertisement or communication indicating that no fee will be charged in the absence of a recovery shall also disclose whether the client will be liable for any expenses.
Cross reference: Maryland Attorneys’ Rules of Professional Conduct, Rule 19-301.8 (e) (1.8).
(f) An attorney, including a participant in an advertising group or lawyer referral service or other program involving communications concerning the attorney’s services, shall be personally responsible for compliance with the provisions of Rules 19-307.1 (7.1), 19-307.2 (7.2), 19-307.3 (7.3), 19-307.4 (7.4), and 19-307.5 (7.5) and shall be prepared to substantiate such compliance.
COMMENT
[1] To assist the public in obtaining legal services, attorneys should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising. Advertising involves an active quest for clients, contrary to the tradition that an attorney should not seek clientele. However, the public’s need to know about legal services can be fulfilled in part through advertising. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. The interest in expanding public information about legal services ought to prevail over considerations of tradition. Nevertheless, advertising by attorneys entails the risk of practices that are misleading or over-reaching.
[2] This Rule permits public dissemination of information concerning an attorney’s name or firm name, address and telephone number; the kinds of services the attorney will undertake; the basis on which the attorney’s fees are determined, including prices for specific services and payment and credit arrangements; an attorney’s foreign language ability; names of references and, with their consent, names of clients regularly represented; and other information that might invite the attention of those seeking legal assistance.
[3] Questions of effectiveness and taste in advertising are matters of speculation and subjective judgment. Some jurisdictions have had extensive prohibitions against television advertising, against advertising going beyond specified facts about an attorney, or against “undignified” advertising. Television is now one of the most powerful media for getting information to the public, particularly persons of low and moderate income; prohibiting television advertising, therefore, would impede the flow of information about legal services to many sectors of the public. Limiting the information that may be advertised has a similar effect and assumes that the bar can accurately forecast the kind of information that the public would regard as relevant.
[4] Neither this Rule nor Rule 19-307.3 (7.3) prohibits communications authorized by law, such as notice to members of a class in class action litigation.
[5] Section (a) of this Rule permits communication by mail to a specific individual as well as general mailings, but does not permit contact by telephone or in person delivery of written material except through the postal service or other delivery service.
Record of Advertising–[6] Section (b) of this Rule requires that a record of the content and use of advertising be kept in order to facilitate enforcement of this Rule. It does not require that advertising be subject to review prior to dissemination. Such a requirement would be burdensome and expensive relative to its possible benefits, and may be of doubtful constitutionality.
Paying Others to Recommend an Attorney–[7] An attorney is allowed to pay for advertising permitted by this Rule and for the purchase of a law practice in accordance with the provisions of Rule 19-301.17 (1.17), but otherwise is not permitted to pay another person for channeling professional work. This restriction does not prevent an organization or person other than the attorney from advertising or recommending the attorney’s services. Thus, a legal aid agency or prepaid legal services plan may pay to advertise legal services provided under its auspices. Likewise, an attorney may participate in not-for-profit attorney referral programs and pay the usual fees charged by such programs. Section (c) of this Rule does not prohibit paying regular compensation to an assistant, such as a secretary, to prepare communications permitted by this Rule.
Assignments or Referrals from a Legal Services Plan or Attorney Referral Service–[8] An attorney who accepts assignments or referrals from a legal services plan or referrals from a attorney referral service must act reasonably to assure that the activities of the plan or service are compatible with the attorney’s professional obligations. See Rule 19-305.3 (5.3). Legal service plans and attorney referral services may communicate with prospective clients, but such communications must be in conformity with these Rules. Thus, advertising must not be false or misleading, as would be the case if the communications of a group advertising program or a group legal services plan would mislead prospective clients to think that it was attorney referral service sponsored by a state agency or bar association. Nor could the attorney allow in-person, telephonic, or real-time contacts that would violate Rule 19-307.3 (7.3).
Reciprocal Referral Agreements with Non-attorney Professionals–[9] An attorney may agree to refer clients to a non-attorney professional, in return for the undertaking of that person to refer clients or customers to the attorney to provide them with legal services. Such reciprocal referral arrangements must not be exclusive or otherwise interfere with the attorney’s professional judgment as to making referrals or as to providing substantive legal services. See Rules 19-302.1 (2.1) and 19-305.4 (c) (5.4). The client must also be informed of the existence and nature of the referral agreement. Reciprocal referral agreements should not be of indefinite duration and should be reviewed periodically to determine whether they comply with these Rules. Conflicts of interest created by such arrangements are governed by Rule 19-301.7 (1.7). Referral agreements between attorneys who are not in the same firm are governed by Rule 19-301.5 (e) (1.5).
Responsibility for Compliance–[10] Every attorney who participates in communications concerning the attorney’s services is responsible for assuring that the specified Rules are complied with and must be prepared to substantiate compliance with those Rules. That may require retaining records for more than the three years specified in section (b) of this Rule.
(a) An attorney shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the attorney’s doing so is the attorney’s pecuniary gain, unless the person contacted:
(1) is an attorney; or
(2) has a family, close personal, or prior professional relationship with the attorney.
(b) An attorney shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone, or real-time electronic contact even when not otherwise prohibited by section (a), if:
(1) the attorney knows or reasonably should know that the physical, emotional or mental state of the prospective client is such that the prospective client could not exercise reasonable judgment in employing an attorney;
(2) the prospective client has made known to the attorney a desire not to be solicited by the attorney; or
(c) Every written, recorded, or electronic communication from an attorney soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words “Advertising Material” on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in subsections (a)(1) or (a)(2) of this Rule.
(d) Notwithstanding the prohibitions in section (a) of this Rule, an attorney may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the attorney that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.
Cross reference: For additional restrictions and requirements for certain communications, see Md. Code, Business Occupations and Professions Article, §§ 10-605.1 and 10-605.2.
COMMENT
[1] There is a potential for abuse inherent in direct in-person, live telephone or real-time electronic contact by an attorney with a prospective client known to need legal services. These forms of contact between an attorney and a prospective client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter. The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the attorney’s presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and over-reaching.
[2] This potential for abuse inherent in direct in-person, live telephone or real-time electronic solicitation of prospective clients justifies its prohibition, particularly since attorney advertising and written and recorded communication permitted under Rule 19-307.2 (7.2) offer alternative means of conveying necessary information to those who may be in need of legal services. Advertising and written and recorded communications which may be mailed or autodialed make it possible for a prospective client to be informed about the need for legal services, and about the qualifications of available attorneys and law firms, without subjecting the prospective client to direct in-person, telephone or real-time electronic persuasion that may overwhelm the client’s judgment.
[3] The use of general advertising and written, recorded or electronic communications to transmit information from attorney to prospective client, rather than direct in-person, live telephone or real-time electronic contact, will help to assure that the information flows cleanly as well as freely. The contents of advertisements and communications permitted under Rule 19-307.2 (7.2) can be permanently recorded so that they cannot be disputed and may be shared with others who know the attorney. This potential for informal review is itself likely to help guard against statements and claims that might constitute false and misleading communications, in violation of Rule 19-307.1 (7.1). The contents of direct in-person, live telephone or real-time electronic conversations between an attorney and a prospective client can be disputed and may not be subject to third-party scrutiny. Consequently, they are much more likely to approach (and occasionally cross) the dividing line between accurate representations and those that are false and misleading.
[4] There is far less likelihood that an attorney would engage in abusive practices against a person who is a former client, or with whom the attorney has a close personal or family relationship, or in situations in which the attorney is motivated by considerations other than the attorney’s pecuniary gain. Nor is there a serious potential for abuse when the person contacted is an attorney. Consequently, the general prohibition in Rule 19-307.3 (a) (7.3) and the requirements of Rule 19-307.3 (c) (7.3) are not applicable in those situations. Also, section (a) is not intended to prohibit an attorney from participating in constitutionally protected activities of public or charitable legal-service organizations or bona fide political, social, civic, fraternal, employee or trade organizations whose purposes include providing or recommending legal services to its members or beneficiaries.
[5] But even permitted forms of solicitation can be abused. Thus, any solicitation which contains information which is false or misleading within the meaning of Rule 19-307.1 (7.1), which involves coercion, duress or harassment within the meaning of Rule 19-307.3 (b)(2) (7.3), or which involves contact with a prospective client who has made known to the attorney a desire not to be solicited by the attorney within the meaning of Rule 19-307.3 (b)(2) (7.3) is prohibited. Moreover, if after sending a letter or other communication to a client as permitted by Rule 19-307.2 (7.2) the attorney receives no response, any further effort to communicate with the prospective client may violate the provisions of Rule 19-307.3 (b) (7.3).
[6] This Rule is not intended to prohibit an attorney from contacting representatives of organizations or groups that may be interested in establishing a group or prepaid legal plan for their members, insureds, beneficiaries or other third parties for the purpose of informing such entities of the availability of and details concerning the plan or arrangement which the attorney or attorney’s firm is willing to offer. This form of communication is not directed to a prospective client. Rather, it is usually addressed to an individual acting in a fiduciary capacity seeking a supplier of legal services for others who may, if they choose, become prospective clients of the attorney. Under these circumstances, the activity which the attorney undertakes in communicating with such representatives and the type of information transmitted to the individual are functionally similar to and serve the same purpose as advertising permitted under Rule 19-307.2 (7.2).
[7] The requirement in Rule 19-307.3 (c) (7.3) that certain communications be marked “Advertising Material” does not apply to communications sent in response to requests of potential clients or their spokespersons or sponsors. General announcements by attorneys, including changes in personnel or office location, do not constitute communications soliciting professional employment from a client known to be in need of legal services within the meaning of this Rule.
[8] Section (d) of this Rule permits an attorney to participate with an organization that uses personal contact to solicit members for its group or prepaid legal service plan, provided that the personal contact is not undertaken by any attorney who would be a provider of legal services through the plan. The organization must not be owned by or directed (whether as manager or otherwise) by any attorney or law firm that participates in the plan. For example, section (d) of this Rule would not permit an attorney to create an organization controlled directly or indirectly by the attorney and use the organization for the in-person or telephone solicitation of legal employment of the attorney through memberships in the plan or otherwise. The communication permitted by these organizations also must not be directed to a person known to need legal services in a particular matter, but is to be designed to inform potential plan members generally of another means of affordable legal services. Attorneys who participate in a legal service plan must reasonably assure that the plan sponsors are in compliance with Rules 19-307.1 (7.1), 19-307.2 (7.2) and 19-307.3 (b) (7.3). See 19-308.4 (a) (8.4).
Direct link to the MD Attorney Rules and Ethics regarding Advertising:
https://www.courts.state.md.us/attygrievance/rules