July 28, 1980
A lawyer may place a listing or advertisement meeting the requirements of C-218, and specifically offering a discount to senior citizens, in a directory of merchants prepared by a third party and by such party made available to or furnished to senior citizens.
References: DR 2-103, DR 2-104; C-218; Administrative Order 1978-4.
A human service agency conducts a program for senior citizens in which participating "merchants" are listed, free of charge, in a directory that is made available to senior citizens. The proposed listing, consistently with the general format of the directory, would list the attorney's name with the designation attorney at law, the business address and telephone number, indicating that you provide "all legal services" and indicate that you will grant a 15% discount to those persons sixty years or age or more. You inquiry as to whether such a listing is ethically proper.
Advertising by Michigan lawyers is now permissible, Michigan Supreme Court Administrative order 1978-4 provides in part:
"A lawyer may on behalf of him or herself, partner, or associate, or any other lawyer affiliated with him/her or his or her firm, use or participate in the use of any form of public communication that is not false, fraudulent, misleading or deceptive. Except for DR 2-103 and DR 2-104, Disciplinary Rules in conflict with this Order are suspended for a period of one year."
That Order, in preserving the effectiveness of disciplinary rues DR 2-103 and DR 2-104, preserved the ethical prohibitions against solicitation. The question is whether your proposed listing would constitute permissible advertising or impermissible solicitation. The general rule on that question was set out in C-218 that states:
"The distinction to be drawn between permissible public communication and improper solicitation does not lie in the mode of communication, but in its content. General communications that tell the public about legal services available, which inform about fees and other costs and about the attorney's qualifications, and which do not unduly prompt a response, constitute permissible advertising. Communications directed to targeted potential clients with an identified need for particular legal services, framed to elicit a direct response to the attorney-sender, constitute improper solicitation."
It appears that your proposed listing informs as to legal services available from you, contains information as t cost, and does not unduly prompt a response to you. It is not directed to potential clients who clearly have an identified present need for legal services. Accordingly, it appears to be a permissible form of advertising within the guidelines of C-218.
Your proposed listing appears to differ from, for instance, clearly permissible newspaper advertisements, only in that it is not generally circulated, but appears in a publication directed at and available to a certain group, i.e., senior citizens. This could render it objectionable if the group were a group "with an identified present need for legal services." However, there is no reason to suppose that senior citizens as a group are any more in need of legal services than the citizenry as a whole. In addition, your listing does not offer specifically or emphasize services that might arguably be needed more by senior citizens than others. Under these facts the fact that the listing is directed at senior citizens, as opposed to the population at large, is inconsequential.
The proposed listing raises the question of the propriety of the discount offered, although your inquiry did not specifically raise this issue. So long as the limits of DR 2-103 and DR 2-104 are observed, your listing may properly indicate the availability of a discount.
This opinion assumes that there is nothing in the directory or the publishing agency's activities or conduct to suggest to users of the directory that the agency or anyone connected with it is endorsing or recommending you.