Opinion 1938

The inquiring lawyer asks the following question: Assuming the lawyer does not know a recently incarcerated individual has a lawyer and the incarcerated individual has not informed the lawyer that he/she does not want to receive communication from the lawyer, may a lawyer send factual brochures to the recently incarcerated individual that advertises the lawyer’s services?

Yes. The Rules of Professional Responsibility (RPCs) do not prohibit a lawyer from soliciting a prospective client by mailing truthful and non-misleading advertisements to the prospective client. While there is some general concern regarding the appropriateness of soliciting prospective clients who are not in a strong position to decline the lawyer’s services, the RPCs make no reference to the prospective client’s circumstances. Courts, other ethical governing bodies and commentators have recognized that a lawyer has a First Amendment right to advertise his or her services, which includes a targeted solicitation to prospective clients. The record-keeping obligations imposed on lawyer advertising by the RPCs act to police any misconduct by the targeted solicitation.

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.