Defense Attorneys and “Direct Mailing” in Utah

Is It Legal and Ethical for Defense Attorneys to Send Direct Mail to People Charged with a Crime?

Isn’t Direct Mail to People Charged with a Crime Just Like “Ambulance-Chasing?”

Does Your Firm Send Direct Mailings?

In a word, Yes.

As you probably know, it is legal for businesses to send you advertisements you didn’t ask for. You probably get some version of them every week: from car dealerships, insurance agents, supermarkets. Attorney’s however, are governed by special rules of ethics, which are written and published by the Supreme Court of the state. If an attorney violates those rules, he or she can get in big trouble.

It used to be unethical for attorneys to do any sort of advertising. Attorneys couldn’t take out ads on billboards, or on TV, or on the radio. It was all supposed to be word-of-mouth and maybe your name hung over your door. But then some attorneys (being attorneys) challenged those restrictions in court, arguing that they have a First Amendment right to freedom of speech and should therefore be able to advertise, and the Supreme Court more or less agreed, so now attorneys can advertise.

However there are still some important ethical restrictions on what attorneys can do when they advertise. They can’t make false or misleading statements, they usually can’t claim to be “experts” in a given field (with a few exceptions), and they can’t “ambulance-chase.” “Ambulance-chasing” is a way to describe the practice of hunting down those people you know need legal help, and trying to sign them up for your services. That leads to the next question:

The ethical rule which prohibits ambulance-chasing is Utah Rule of Professional Conduct 7.3(a). It says:

A lawyer shall not by in-person contact or other real-time communication solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain…

So what’s prohibited is “in person,” “real-time communication.” When they drafted the rule, the rules committee specifically allowed for attorneys to send out mail to potential clients as a form of advertising, because it could “assist the public in obtaining legal services” without the pressure of in-person sales techniques.  So, no, it’s not unethical for attorneys to send out direct mailings.

I tried it for a while when I first started my firm. I got a few clients that way, but I also heard from several people that were embarrassed by all the attorney letters they received after being charged with a crime. Some of them had roommates or lived with their parents, or just hadn’t told their spouse yet about their charges, and they wanted to be able to do it on their own terms, not by explaining why they were getting all these letters. Other people were just annoyed by getting more junk mail during an already stressful time. So I decided to stop.

No disrespect to those lawyers that use this practice.  I know many of them are very good defense attorneys. And, as the ethical committee said, for some people charged with a crime, the direct mail helps them find and choose a lawyer.  I just decided it was not the direction I wanted to go for my firm. I hope my clients find me the old-fashioned way, by word-of-mouth, or the new-fashioned way, by Googling around and finding my website. Either way, I want them to get in touch with me on their own terms, not on mine.

 

Content by Dain Smoland (Google+)