Bradford Botes Alabama Bankruptcy AttorneyThe answer to this question is yes – in certain circumstances – and if strict rules are followed.  Rule 7.3(a) of the Alabama Rules of Professional Conduct sets forth the general prohibition against such solicitations and provides in, pertinent part, that “A lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no familial or current or prior professional relationship, in person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain.”

The term “solicit” “includes contact in person, by telephone, telegraph, or facsimile transmission, or by other communication directed to a specific recipient and includes contact by any written form of communication directed to a specific recipient and not meeting the requirements of subdivision (b)(2) of this rule.”  Accordingly, if a lawyer wants to send a written communication directed to a “specific recipient” which solicits “professional employment” “from a prospective client with whom the lawyer has no familial or current or prior professional relationship, in person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain”; he/she must comply with the relevant requirements of Rule 7.2 of the Alabama Rules of Professional Conduct pertaining to advertising in general and the  relevant requirements of Rule7.3(b) of the Alabama Rules of Professional Conduct pertaining to written communications.  Below is a summary of the applicable provisions of these rules:

Rules 7.2 of the Alabama Rules of Professional Conduct provides in relevant part that:

  • COPY OF LETTER MUST BE SUBMITTED TO THE BAR: “A true copy or recording of any such advertisement shall be delivered or mailed to the office of the general counsel of the Alabama State Bar at its then current headquarters within three (3) days after the date on which any such advertisement is first disseminated; the contemplated duration thereof and the identity of the publisher or broadcaster of such advertisement, either within the advertisement or by separate communication accompanying said advertisement, shall be stated.” Rule 7.2(b)
  •  COPY OF LETTER MUST BE KEPT BY LAWYER FOR SIX (6) YEARS: “Also, a copy or recording of any such advertisement shall be kept by the lawyer responsible for its content, as provided hereinafter by Rule 7.2(d), for six (6) years after its last dissemination.” Rule 7.2(b)
  • LETTER MUST INCLUDE LAWYER’S NAME: “Any communication made pursuant to this rule shall include the name of at least one lawyer responsible for its content.” Rule 7.2(d)
  • DISCLAIMER MUST BE INCLUDED: “No communication concerning a lawyer’s services shall be published or broadcast, unless it contains the following language, which shall be clearly legible or audible, as the case may be: “No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.”” Rule 7.2(e)
  • FEES ADVERTISED MUST BE HONORED: “If fees are stated in the advertisement, the lawyer or law firm advertising must perform the advertised services at the advertised fee, and the failure of the lawyer and/or law firm advertising to perform an advertised service at the advertised fee shall be prima facie evidence of misleading advertising and deceptive practices. The lawyer or law firm advertising shall be bound to perform the advertised services for the advertised fee and expenses for a period of not less than sixty (60) days following the date of the last publication or broadcast.” Rule 7.2(f)
  • LETTER CONCERNING CIVIL SUIT MAY NOT BE SENT UNTIL SEVEN (7) DAYS AFTER SERVICE OF PROCESS: “A lawyer shall not send, or knowingly permit to be sent, on the lawyer’s behalf or on behalf of the lawyer’s firm or on behalf of a partner, an associate, or any other lawyer affiliated with the lawyer or the lawyer’s firm, a written communication to a prospective client for the purpose of obtaining professional employment if…the written communication concerns a civil proceeding pending in a state or federal court, unless service of process was obtained on the defendant or other potential client more than seven (7) days prior to the mailing of the communication”. Rules 7.3(b)(1) and 7.3(b)(1)(ii)
  • SAMPLE COPIES OF ALL WRITTEN COMMUNICATIONS, ENVELOPE AND RECIPIENT NAMES AND ADDRESSES TO BE PROVIDED TO BAR: “A sample copy of each written communication and a sample of the envelope to be used in conjunction with the communication, along with a list of the names and addresses of the recipients, shall be filed with the office of general counsel of the Alabama State Bar before or concurrently with the first dissemination of the communication to the prospective client or clients. A copy of the written communication must be retained by the lawyer for six (6) years. If the communication is subsequently sent to additional prospective clients, the lawyer shall file with the office of general counsel of the Alabama State Bar a list of the names and addresses of those clients either before or concurrently with that subsequent dissemination. If the lawyer regularly sends the identical communication to additional prospective clients, the lawyer shall, once a month, file with the office of general counsel a list of the names and addresses of those clients contacted since the previous list was filed”. 7.3(b)(2)(i)
  • LETTER MUST BE SENT BY REGULAR MAIL ONLY: “Written communications mailed to prospective clients shall be sent only by regular mail, and shall not be sent by registered mail or by any other form of restricted delivery or by express mail”. 7.3(b)(2)(ii)
  • MAY NOT SAY APPROVED BY BAR: “No reference shall be made either on the envelope or in the written communication that the communication is approved by the Alabama State Bar.” 7.3(b)(2)(iii)
  • MAY NOT RESEMBLE LEGAL DOCUMENT: “The written communication shall not resemble a legal pleading, official government form or document (federal or state), or other legal document and the manner of mailing the written communication shall not make it appear to be an official document.” 7.3(b)(2)(iv)
  • THE WORD “ADVERTISEMENT” MUST BE INCLUDED IN LARGE RED INK: “the word “Advertisement” shall appear prominently in red ink on each page of the written communication, and the word “Advertisement” shall also appear in the lower left-hand corner of the envelope in 14-point or larger type and in red ink. If the communication is a self-mailing brochure or pamphlet, the word “Advertisement” shall appear prominently in red ink on the address panel in 14-point or larger type.” 7.3(b)(2)(v)
  • IF CONTRACT FOR REPRESENTATION INCLUDED, MUST BE MARKED “SAMPLE”: “if a contract for representation is mailed with the written communication, it will be considered a sample contract and the top of each page of the contract shall be marked “SAMPLE.” The word “SAMPLE” shall be in red ink in a type size at least one point larger than the largest type used in the contract. The words “DO NOT SIGN” shall appear on the line provided for the client’s signature.” 7.3(b)(2)(vi)
  • MUST BEGIN WITH REQUEST TO DISREGARD IF REPRESENTED BY LAWYER: “the first sentence of the written communication shall state: “If you have already hired or retained a lawyer in connection with [state the general subject matter of the solicitation], please disregard this letter [pamphlet, brochure, or written communication].” 7.3(b)(2)(vii)
  • MUST DISCLOSE HOW INFORMATION OBTAINED: “if the written communication is prompted by a specific occurrence (e.g., death, recorded judgment, garnishment) the communication shall disclose how the lawyer obtained the information prompting the communication.” 7.3(b)(2)(viii)
  • MAY NOT REVEAL NATURE OF LEGAL PROBLEM ON ENVELOPE: “a written communication seeking employment by a specific prospective client in a specific matter shall not reveal on the envelope, or on the outside of a self-mailing brochure or pamphlet, the nature of the client’s legal problem.” 7.3(b)(2)(ix)
  • LAWYER MUST BE ABLE TO PROVE TRUTHFULLNESS: “a lawyer who uses a written communication must be able to prove the truthfulness of all the information contained in the written communication.” 7.3(b)(2)(x)

In addition to the above, bankruptcy attorneys should be aware that the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) requires that debt relief agencies disclose specified information in certain advertising directed to the general public.  See 11 U.S.C Section 528.

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