April 2, 1986
A withdrawing associate of a law firm may not ethically send announcements of the new affiliation to clients of the former employer, even if the associate had substantial personal contact with the clients, unless the clients contacted were clearly the associate's clients and not clients of the firm.
A lawyer may not send mailings to, or solicit the business of, potential clients with an identified legal problem.
References: MCPR DR 2-102(A)(2); Supreme Court Admin Order 1978-4; C-236; CI-247, CI-662, CI-681; Zauderer v Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 US 626; 105 S Ct 2265; 85 L Ed 2d 652 (1985).
A lawyer who was employed as an associate in a law firm for four and one-half years has left the firm for a new position, and asks about the propriety of sending brief and dignified announcement cards to those clients of the former employer with whom the associate had personal contact or handled legal matters.
MCPR DR 2-102(A)(2) and Supreme Court Administrative Order 1978-4 are directly applicable to the content of the announcement. We are satisfied, based upon the copy of the announcement submitted to us, that the announcement itself is certainly not false, fraudulent, misleading or deceptive and satisfies the general requirements of Administrative Order 1978-4.
There remains the question concerning distribution of that announcement. In CI-247, we held that an associate may send announcement cards only to the associate's own former clients, and not clients of the former employer. The reasoning set forth in CI-247 was followed by CI-662, as follows:
"We thus conclude that if you are currently an employee of your law firm, you may not send the proposed announcement to clients of that law firm. If you have been permitted, however, to represent clients individually, outside of your employment with the law firm, you may send the proposed announcement to those clients."
See also CI-681 where we said:
"This committee has considered the question of announcements to clients of an attorney's former law firm on a number of occasions. An associate leaving the employment of a law firm and establishing a private practice of his own may not send notices of his leaving to the clients of his former firm unless it is clear that the client was retaining the attorney personally, and not the firm." C-263, and CI-662.
We presume that the clients the associate wishes to contact were, in fact, clients of the former employer even though the associate may have had substantial contact with them and performed substantial legal services on their behalf. We presume the associate was paid on a salary and that the clients did not pay the associate directly for the legal services performed. If that assumption is in error, there may be some circumstances under which these clients might be considered the associate's clients rather than clients of the office, and CI-247 would be inapplicable.
In general, however, we conclude that a mailing to the former employer's clients, even if the associate worked with and for them, is ethically impermissible pursuant to the cited opinions.
In addition, in Zauderer v Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 US 626; 105 S Ct 2265; 85 L Ed 2d 652 (1985), the United State Supreme Court considered the applicability of companion rules Dr 2-103(a) and DR 2-104(a). The opinion was subject to our formal opinion C-236 published in the January 1986 Michigan Bar Journal. As was noted in that Opinion, neither DR 2-103 nor Dr 2-104 prohibit truthful and non-deceptive general advertisements, and therefore a portion of C-218 was reversed, but in so holding we reaffirmed the ban on mailings to, or direct solicitation of, a limited class of potential clients with an identified legal problem. That holding was based upon our view that the ethical standards of the profession prohibit direct communications by a lawyer to a prospective client for pecuniary gain, as well as the need for public scrutiny of the mailed material.
Based upon your prior association with the clients of your former employer, it must be concluded that a mailing of the announcement to them would constitute a mailing to a class of potential clients with an identified legal need, and such would be in violation of the ban we reaffirmed in formal Opinion C-236.