On Ethical Issues Raised by “Letter Lawyers”

Mark Bennett refers to them as “letter lawyers”; they are the lawyers who, with the hopes of securing new clients, send out advertising materials to the people whose names and addresses have been listed on public arrest records.

A friend of ours was charged recently with a misdemeanor traffic offense and received over 20 letters in the mail.  She shared them with me, and it was interesting to see what my competition has been up to.  She was particularly annoyed with the postcards: I don’t really want my children, neighbors, and postman to know that I have been charged with a crime, she said.

The best letters, I thought, were low-key and informative. We understand you have an upcoming court date. If you already have an attorney, please disregard this letter. Feel free to visit our website for information on the charges facing you. And feel free to call our office to talk with one of our attorneys.

The other letters – the ones that made ample use of capital letters, underlining, bold-faced type, and exclamation points – tended to fall into one of several categories.

First, there is the “emotional appeal” to scare potential clients:

Dear Friend:

Public records indicate that you may have been charged with a SERIOUS TRAFFIC/CRIMINAL OFFENSE.  If convicted you may face a possible jail sentence, substantial fine, criminal record, and suspension of your driving privileges . . . depending on the charge!

In addition, if convicted, you may be assessed “negative demerit points” against your driving record and your automobile insurance company may terminate your insurance coverage, refuse to renew it, or substantially raise your premiums. 

But, if handled properly, it is often possible to avoid some or all of these very unpleasant results . . . or at least to understand and minimize their impact upon you!

Some of the letters go after the competition:

Our firm is located in Fairfax and only Fairfax (right next to the courthouse). Our lawyers are in court in Fairfax nearly every day of the week appearing before judges and dealing with the prosecutors that will be handling your case. Hiring a lawyer from a neighboring county can put you at a disadvantage. Much like the saying that “all politics is local,” the practice of law in this area is local as well. There are 10 different judges on the Fairfax General District Court and over 20 prosecutors. Not being familiar with the players involved and the decisions they make puts your lawyer at a disadvantage. A lawyer that divides his time between multiple jurisdictions, or “moonlights” in Fairfax, may not be able to offer this to you.

Some lawyers emphasize the willingness to fight:

Do not hire an attorney whose goal is to settle a case easily, without trying to find way to obtain an acquittal. 

Others seem to be setting prospective clients up for a plea:

If you are properly represented by an attorney, there exists the chance to reach an agreement with the Commonwealth’s Attorney about an agreed recommendation of the disposition of the case before the case is heard by the judge.  This way you have a good idea of the outcome before you go before the judge.  The judge will have a few simple questions for the Commonwealth’s Attorney or the defense attorney and the proceeding just takes a few minutes (you normally do not have to say anything). 

There are the casual, folksy letters:

I would like to help you win your case. That’s it. It’s that simple. I don’t want to scare you into a plea bargain. I don’t want to tell you what you did wrong. I want to help you win. Period. So please accept this invitation to meet with me for a FREE LEGAL CONSULTATION.

There are the lawyers who seek to distinguish themselves from the competition:

We do not waste your time with gimmicks like colored paper, pretend booklets, or office appointments. 

And then, of course, there are the caring lawyers:

Because I have seen the devastating consequences that can result when people are charged with DUI, reckless driving, and other serious traffic and criminal offenses, I care about my clients.  My goal is to help them get their life back.  I walk with clients through the often complicated process of defending their case, protecting their reputation, and guarding their future . . .

My client’s concerns are my concerns and I make them a top priority,  I try to treat every client as if their case was my most important case, because I know it is their most important case. That’s why I am available 24 hours a day and return my client’s phone calls promptly!

While there are many former prosecutors in the bunch, one of the lawyers felt the need to drive home his ability to curry special favor with judges and prosecutors:

As a former Fairfax County prosecutor, I have an inside understanding of the system in Fairfax County.  I know how to defend Reckless Driving cases because I once prosecuted these same cases.  On a daily basis, I practice before the very Fairfax judges and prosecutors that will handle your case.  I have handled thousands of Reckless Driving cases – on both sides of the system.

Also iffy from an ethical standpoint is the following:

My firm is unquestionably one of the most accomplished and aggressive firms in Northern Virginia.  Not only do I practice law, I TEACH OTHER LAWYERS the skills needed to win their cases.  You see, lawyers are required to take yearly courses to maintain their knowledge and understanding of the law.  I have taught the very courses many lawyers rely on to sharpen their skills.  This advanced, in-depth knowledge of the law sets [my firm] apart from the crowd. 

I have nothing in principle against lawyers who send out letters to advertise their services. After all, as pointed out in one of the comments to Rule 7.1 on Communications Concerning a Lawyer’s Services, the “legal profession should assist lay persons to recognize legal problems because such problems may not be self revealing and often are not timely noticed”; there is “value” in “giving assistance in the lawyer selection process”; and the “attorney client relationship should result from a free and informed choice by the lay person.”

At the same time, “[a]ll such communications should be evaluated with regard to their effect on the reasonably prudent layperson. The non lawyer is best served if communications about legal problems and lawyers contain no misleading information or emotional appeals, and emphasize the necessity of an individualized evaluation of the situation before conclusions as to legal needs and probable expenses can be made.”  Moreover,“[a]dvertising through which a lawyer seeks business by use of extravagant, self laudatory statements, or appeals to fears and emotions could mislead laypersons . . . Advertisements and public communications should be formulated to convey information that is useful to a layperson in making an appropriate selection.  Self laudation should be avoided.”