Coming Soon: Windshield Flyers

I got this in the mail:
Front of Criminal Lawyer Advertising Postcard
And no, it wasn’t addressed to me:
Back of Criminal Lawyer Advertising Postcard
How embarrassing for David E. A., whose mail was delivered to my office, for the whole world to learn that he’s facing a criminal charge. There ought to be a rule against lawyers sending out solicitations like this.
Ah, but there is! (You knew I was going to say that, right?)

Rule 7.05(b) of the Texas Disciplinary Rules of Professional Conduct provides that a written solicitation communication to prospective clients for the purpose of obtaining professional employment:

(1) shall, in the case of a non-electronically transmitted written communication, be plainly marked “ADVERTISEMENT” on its first page, and on the face of the envelope or other packaging used to transmit the communication.  If the written communication is in the form of a self-mailing brochure or pamphlet, the word “ADVERTISEMENT” shall be: 
 (i) in a color that contrasts sharply with the background color; and 
 (ii) in a size of at least 3/8″ vertically or three times the vertical height of the letters used in the body of such communication, whichever is larger;
(2) shall, in the case of an electronic mail message, be plainly marked “ADVERTISEMENT” in the subject portion of the electronic mail and at the beginning of the message’s text; 
 (3) shall not be made to resemble legal pleadings or other legal documents; 
(4) shall not reveal on the envelope or other packaging or electronic mail subject line used to transmit the communication, or pamphlet, the nature of the legal problem of the prospective client or non-client; and 
(5) shall disclose how the lawyer obtained the information prompting the communication to solicit professional employment if such contact was prompted by a specific occurrence involving the recipient of the communication or a family member of  such person(s). 

D.B.’s postcard didn’t violate subsection (2), because it wasn’t an electronic mail message, or subsection (3), because it wasn’t made to resemble a legal pleading.

When it was pointed out to D.B. that his postcard violates several provisions of the Texas Disciplinary Rules of Professional Conduct, his written response included this:

After careful review it appears that our fulfillment provider used an old template when printing and mailing the postcards. After several files were exchanged with the provider it appears that the provider mistakenly selected the wrong postcard template but that has been correct and any future mailings are marked with the statement “Advertisement” . . . .

Most importantly, the flier only purports to offer “Criminal Defense” services by the firm to the anyone that receives the mailer. The mailer does not reveal the nature of the legal issues that someone may have or is alleged to have committed as in accordance to 7.05(b)(4). As in any postcard type mailer, if you disclose on the outside the source of the mailer than it could infer that the individual has a legal matter violating rule 7.05(b)(5). I reviewed over twenty mailers that have been issued to prospective clients dealing with criminal matters from other firms only sealed envelopes should contain the source of the mailing if a prospective individual has an alleged charge by a state entity.

We have instructed the fulfillment provide to strike this address in order to eliminate [you] from receiving any further correspondence.

First, says D.B. it’s the help’s fault that the postcard isn’t marked “ADVERTISEMENT”: SODDI. Never mind Rule 7.04(e): “All advertisements in the public media for a lawyer or firm must be reviewed and approved in writing by the lawyer or a lawyer in the firm.” (This one’s not such a big deal to me, actually, since nobody would think that the postcard was anything other than an advertisement. But, hey, rules are rules.)

Then, apparently, the postcard that uses the word “criminal” three times “does not reveal the nature” of the legal problem of the prospective client. I doubt that D.B. would agree if he were the one with the embarrassing criminal problem that he was trying to keep his family / the neighbors / the postman from learning about. I don’t think it takes a rocket scientist to figure out from D.B.’s postcard that the nature of David’s legal problem is criminal.

Further, argues D.B., he can’t ethically disclose how he obtained the information (presumably through the District Clerk’s records of new arrests) because it’s a postcard, and that would (as I understand the argument) reveal the nature of the legal problem. . . in a way that “If you’re being charged with a crime . . . . WE WILL FIGHT FOR YOU!” does not.

What’s more, D.B. reviewed over twenty mailers from other firms: Everyone else is doing it.

Finally, so that that pesky Bennett doesn’t ask any more discomfiting questions, D.B. has told the “fulfillment provide” not to send him any more postcards.

Here’s a better approach, D.B.: fix your postcards so that they comply with the rules and it doesn’t matter that one of them lands in my mailbox. Or, if postcards can’t comply with the rules (I suspect that they can’t), then send letters in envelopes (you don’t have the right to send out postcards any more than you have the right to hang door tags on the doors of people charged with crimes). Or, if you’re too cheap to send letters in envelopes that protect your potential clients’ privacy, don’t send out letters at all.

7.05(b)(4) is one of those rules that exist for a damn good reason, and for a reason that criminal-defense lawyers, at least, should appreciate: because people in legal trouble don’t want everyone else to know about it. Even if the case is eventually beaten, news of it can destroy a person’s reputation. Part—a large part—of the criminal lawyer’s job is to minimize the reputational damage that a criminal charge and arrest can cause. (See High-Profile Cases.)

A criminal-defense lawyer who is willing to help trash his client’s reputations, whether before representation begins (as in the case of D.B.), during representation (as in the case of the lawyer seeking media attention unhelpful to the client), or after representation (as in the case of the lawyer who advertises his successful client’s name) is putting his own ego and wallet ahead of his client’s reputation.

That in itself casts doubt on the value of the service that the lawyer is trying to sell—when the lawyer puts his ego and his wallet ahead of his client’s reputation, what is left for the client?

0 responses to “Coming Soon: Windshield Flyers”

  1. Query whether, in your opinion, if the postcard had been sent to “Resident” or some such at that address, would that have violated the Rule?

    IMHO it would have been in extremely poor taste but it would not then have violated the rule (one might argue that he could be the only “resident” at an address, but I think that is stretching it).

    I do agree with your take on DB’s response to your query. I was taught as a baby lawyer that everything that goes out with your name on it is your responsibility. Period. Furthermore, as the advertiser is acting on DB’s behalf, the advertiser is DB’s agent and the actions of the advertiser are therefore attributed to DB.

    Lastly, is the tort action “publication of private facts” not available to the potential client? (Or, is that tort not recognized in Texas?)

  2. Mickey – yeah, it’s still a violation of the rule, according to the State Bar. The firm at which I work had a campaign we wanted to launch inviting people to an informal “Know Your Rights”/”What To Do When” drop-in session, and we wanted to use postcards. (They didn’t feature the word “criminal” at all.) Even in that case, when we submitted the postcard to the State Bar for prior approval, they nixed it – use envelopes, they said, and a question about making it even -less- specific by addressing it to “Current Resident” received the same opinion.

    It was frustrating at the time, but it’s a smart rule – the potential harm to a client is definitely present. I’m glad the Bar’s got that rule in place. (The one that requires a giant, tacky ADVERTISEMENT is still pretty obnoxious, especially if you’re not trying to pretend like it’s something else.)


  3. Dan, thank you for your response.

    I guess this is all so disheartening mostly because it cheapens our “profession” to a level that is becomes just a vocation. One of my reasons for becoming a lawyer in the first place was the gentlemanly intellectual practice. (Now, I realize that the term “gentlemanly” is not politically acceptable, but please understand that I intent it to extent to all genders and affiliations.)

    It seems that with each new year comes new lows in what members of our profession will try. I have seen TV ads where lawyers carry baseball bats, drop money bags, and flat pander to the greedy nature of some of our less gifted public.

    Okay, I’ll admit it, my leftist leanings force me to acknowledge the correctness of unfettered free commercial speech, and I would never propose that we attempt to legislate morality and seemliness, but….

    but my phone is not exactly ringing with a bevy of potential clients and there’s this marketing firm that promises at least 5 telephone calls for every 400 mailers….

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