Office of Disciplinary Counsel v. Yurich ( 1997 )

Per Curiam.

We adopt the findings and conclusions of the board. An attorney’s disclosure of client confidences has heretofore warranted a public reprimand. Geauga Cty. Bar Assn. v. Psenicka (1991), 62 Ohio St.3d 35, 577 N.E.2d 1074. Although in this case respondent’s disclosure was inadvertent, respondent’s negligence enabled a son to discover that he was to be disinherited by his parents, one of whom was still living.

In addition, the board found that respondent’s mailing was a “targeted mailing” and, as such, was subject to the restrictions of DR 2 — 101(F)(2)(e). That rule reads in part:

“A lawyer or law firm may engage in written solicitation by direct mail addressed to persons or groups of persons who may be in need to specific legal service * * *, provided the letter of solicitation * * * (e) Includes in its text and on the envelope in which mailed, in red ink and in type no smaller than 10 point, the recital — ‘ADVERTISEMENT ONLY.’ ”

We adopted DR 2-101(F)(2), directed to “targeted mailings,” in response to Shapero v. Kentucky Bar Assn. (1988), 486 U.S. 466, 108 S.Ct. 1916, 100 L.Ed.2d 475, which held that direct mail by an attorney targeted to specific recipients knowing they are likely to need a particular legal service offered by the attorney is constitutionally protected commercial speech. A Disciplinary Rule such as the one in DR 2-101(F)(2) was specifically considered in Florida Bar v. Herrick (Fla.1990), 571 So.2d 1303, certiorari denied (1991), 501 U.S. 1205, 111 S.Ct. 2798, 115 L.Ed.2d 972. In that case, the Florida Supreme Court publicly reprimanded a lawyer who mailed unsolicited letters not marked as advertising to prospective clients. In Matter of Anonymous (Ind.1994), 630 N.E.2d 212, 215, the Indiana Supreme Court, faced with a similar situation, sanctioned the attorneys with a private reprimand “based on the unique circumstances and factors in mitigation present in these cases.”

Respondent not only “targeted” his mailing, but through the conveniences of computer programming, he also was able to “personalize” it, that is, address it to the particular recipient with a comment (albeit erroneous in this case) about “your parent(s).” As the United States Supreme Court said in Shapero at 476, 108 S.Ct. at 1923,100 L.Ed.2d at 486:

“[A] letter that is personalized (not merely targeted) to the recipient presents an increased risk of deception, intentional or inadvertent. It could, in certain circumstances, lead the recipient to overestimate the lawyer’s familiarity with the case or could implicitly suggest that the recipient’s legal problem is more dire than it really is. * * * Similarly, an inaccurately targeted letter could lead the recipient to believe she has a legal problem that she does not actually have * * *

Respondent is hereby publicly reprimanded. Costs taxed to the respondent.

Judgment accordingly.

Moyer, C.J., Douglas, Resnick, F.E. Sweeney, Pfeifer and Lundberg Stratton, JJ., concur. Cook, J., dissents.