The list decides whether a law firm email newsletter is simple or risky. Sent to current and former clients, it is mostly a content decision. A list of people who never asked for it turns the same email into an advertising question, and federal CAN-SPAM rules cover commercial email.

This is general information only; rules vary by state, so check your state bar’s current rules before sending.

How ABA Solicitation Rules Treat a Client Newsletter

A law firm newsletter sent to the firm’s own clients is usually not a solicitation under the ABA Model Rules. Solicitation is a lawyer’s offer “directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter.”

Written email generally falls outside Rule 7.3(b), which bars solicitation “by live person-to-person contact” for pecuniary gain, meaning to earn a fee. Under Comment 2 to Rule 7.3, live contact “does not include chat rooms, text messages or other written communications that recipients may easily disregard.” Comment 1 adds that a communication responding “to a request for information” is not a solicitation.

Rule 7.2(d) also applies to a newsletter that promotes the firm. It “must include the name and contact information of at least one lawyer or law firm responsible for its content.” These rules sit inside the wider attorney advertising ethics rules for law firm content.

When a Newsletter Needs an “Advertisement” Subject Line

Florida and Texas require email ads to prospective clients to say so in the subject line, with separate exemptions:

• Florida label: an email ad needs “a subject line that begins with the word ‘Advertisement,'” according to the Bar’s checklist for email and targeted messages. According to the Bar’s Handbook on Lawyer Advertising, information “sent only to existing and former clients,” family members and other lawyers needs no mark. Information a prospective client requested is also exempt.
• Florida filing: unsolicited direct email ads must be filed “at least 20 days” before use. Mailings “sent only to other lawyers, current clients, and former clients” are exempt. For newsletters, “only the first issue” must be filed if the promotional content stays the same, according to the Bar’s filing requirements page.
• Texas label: under Rule 7.03, a solicitation communication to a prospective client must be “plainly marked or clearly designated an ‘ADVERTISEMENT.'” A comment to the rule presumes an email is plainly marked when “the first word in the subject line is ‘ADVERTISEMENT’ in all capital letters.” The marking does not apply to other lawyers, people with a family, close personal, or prior business or professional relationship, or known experienced business users.
• Texas filing: Rule 7.05(e) exempts from filing a professional newsletter sent only to existing or former clients, or to people who asked for it. It must still comply with Rules 7.01 to 7.03, according to the Supreme Court of Texas order.

State advertising rules also reach Google Business Profile posts.

What CAN-SPAM Requires of Every Law Firm Email

CAN-SPAM “doesn’t apply just to bulk email,” so a promotional firm newsletter should meet each requirement in the FTC’s CAN-SPAM compliance guide:

• No false or misleading header information.
• No deceptive subject lines.
• Identify the message as an ad.
• Include a “valid physical postal address.”
• Explain clearly how to opt out.
• Honor opt-out requests “within 10 business days.”
• Monitor any vendor sending on the firm’s behalf, because “you can’t contract away your legal responsibility.”

Each separate violating email “is subject to penalties of up to $53,088.” CAN-SPAM treats some emails as “transactional or relationship” messages, but “the law views these categories narrowly.”

Writing the Newsletter Without Breaking Confidentiality

A law firm newsletter that mentions a client’s case generally needs the client’s informed consent first, meaning agreement after the risks are explained. In Formal Opinion 480, the ABA addressed lawyers’ public commentary. It said Rule 1.6 “does not provide an exception for information that is ‘generally known’ or contained in a ‘public record.'” A case in a public court file still needs consent. Before featuring a case, send the client the exact paragraph for written approval.

Frequently Asked Questions

Is a law firm email newsletter considered attorney advertising?

A law firm email newsletter that promotes the firm is a communication about its services. ABA Model Rule 7.2(d) requires it to name a responsible lawyer or firm. Labels and filing depend on the state and the recipients.

Does a law firm newsletter need “Advertisement” in the subject line?

Florida and Texas require “Advertisement” in a law firm newsletter’s subject line when it is an email ad or solicitation to prospective clients. Both exempt messages to existing clients from the marking.

Can a law firm email people who are not clients?

Non-clients can receive a law firm’s email, though it may then count as an ad under state labeling and filing rules. CAN-SPAM also requires a postal address and a working opt-out.

Can a law firm newsletter mention a client’s case?

Mentioning a client’s case in a law firm newsletter should happen only with informed consent. ABA Formal Opinion 480 says Rule 1.6 has no exception for information that is generally known or in a public record.

A Law Firm Email Newsletter Clients Want to Open

Start a law firm email newsletter with readers who already know the firm, and check your state’s legal advertising rules before the first send. To have each issue written, call Lexicon’s legal content experts at 877-486-8123 or contact us online.

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David Arato, JD is the founder of Lexicon Legal Content, an attorney-owned legal content marketing agency serving law firms since 2012. Lexicon’s services include law firm FAQ pages, legal blogging and practice area pages. David is a frequent contributor to Attorney at Law Magazine and Attorney at Work and a recurring guest on legal marketing podcasts.