08-03.

• Case Date: August 04, 2008
• Court: Kansas

Kansas Ethics Opinion 2008. 08-03. KBA Legal Ethics Opinion No. 08-03August 4, 2008TOPIC: Direct mail advertisingDIGEST: Direct mail advertising by lawyers is constitutionally permitted under some circumstances, but it is prohibited where the advertising involves coercion, duress or harassment.Date of Request: July 22, 2008. REF: KRPC 7.3, 7.2, 7.1. FACTS: Counsel has submitted proposed written solicitations in the form of four separate one-page flyers, with the following topics: "Time May Be Running Out!" - warning of the statute of limitations on "an injury claim," and warning that "if you don't call me, you probably should call a lawyer to make sure your claim is not forever barred." "Before Signing Medical Release Forms . . ." - offering to consult with injured persons about "why you may not want to sign medical release forms;" "Insurance Claims for Family Members" - advising that the recipient's insurance policy may cover injuries "even if your spouse or relative was driving;" and A solicitation offering sympathy to those bereaved by the recent death of a loved-one, stating "you should hire a lawyer to represent you," and warning that "[t]ime starts running from the date of the death." Each of these solicitations concludes with the statement that the solicitation was "prompted by information obtained in one or more accident reports, which are made available to all as a matter of public record by local and state law enforcement agencies." Counsel proposes to send these flyers by mail. Each flyer contains the word "Advertisement" prominently displayed at the top, and also includes counsel's photograph. QUESTIONS: May the lawyer make such mailings under KRPC 7-1 - 7.3? ANALYSIS: The reader is referred to KBA Ethics Op. 92-2 and 95-13, which both address the subject of direct mail solicitation. This Opinion is the first, however, which has been issued pertaining to lawyer advertising since the July 1, 2007 adoption of the amended Kansas Rules of Professional Conduct (KRPC) in the wake of Ethics 2000. Rule 7.3(b), KRPC now provides as follows: (b) A lawyer 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 paragraph (a), if: (1) the prospective client has made known to the lawyer a...