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Ethics Opinion

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CI-528

July 28, 1980

SYLLABUS

    It will be improper in most cases for a group of attorneys t conduct a common advertising program who do not share a formal relationship, as such an advertising program could be misleading as to their true relationship.

    It is not improper for attorneys to circulate a general information circular in their surrounding neighborhood announcing to the public that they are in the practice of law, and the areas of practice in which they have knowledge and experience provided the circular is not targeted so as to unduly prompt a direct response from the recipients of the circular as a result of a particular legal need.

    It is not improper for attorneys to send out formal announcements to friends and relatives announcing that they are now in private practice.

    It is not improper for attorneys to distribute their professional cards to the public either by themselves or through other individuals provided such other individuals are not paid a fee of any sort to recommend the attorney's services. The attorney's professional cards may not be distributed to individuals having a known need for legal services since such a distribution would constitute impermissible solicitation. Additionally, there are inherent dangers permitting others to distribute professional cards since there is a strong likelihood that the distribution will be made to those persons the distributor knows are in need of legal services. A lawyer will be strictly accountable for the conduct of those to whom he or she entrusts professional cards for distribution.

    As a general rule it is not improper for attorneys to prepare printed signs indicating their name, address and type of work they are handling and placing such signs at various business establishments within their general neighborhood. However, the location of such a sign may not be such that the communiqué is directed to target potential clients in need of particular legal services so as to elicit a direct response. Such businesses may not be compensated for recommending the attorney's services.

    It is not proper for an attorney to contact various insurance companies throughout the state and attempt to solicit their legal defense work.

    References: DR 2-102, DR 2-103, DR 2-104; C-218; CI-457; Administrative Order 1978-4; Bates v. State Bar of Arizona, 433 US 350 (1977).

TEXT

Your inquiry indicates that you have recently entered into private practice and become associated with several other attorneys. Prior to this you were employed as an in-house trial counsel for a Michigan based automobile insurance company for a number of years. In conjunction with your entry into private practice you wish to formulate an advertising program to attract prospective clients. Your inquire lists several proposals you are entertaining in this regard which are as follows:

  1. Preparing a general information circular giving your name, address and telephone number with the intent to distribute this circular within your surrounding neighborhood announcing to the public that you practice law and, listing the areas of practice in which yourself, and the attorneys you are associated with, have knowledge, experience and expertise. This circular would not be addressed to any particular individual or individuals.
  2. Sending a formal announcement to friends and relatives, both within and outside the State Bar of Michigan, announcing that you are now in private practice.
  3. Distributing professional cards to the public, both by yourself and through other individuals at your request.
  4. Preparing printed signs indicating your name, address and the type of work your office is handling and posting such signs at various business establishments within your general neighborhood.
  5. Obtaining from the insurance commissioner's office a list of automobile insurance companies in the state of Michigan writing No-fault automobile insurance and preparing a form letter seeking employment addressed either to the general counsel or chief claims manager for the various insurance companies in the state of Michigan. The correspondence will indicate your education, experience and insurance defense work background, and indicate the results of certain cases you have handled. The correspondence would also indicate that you are available to handle a portion of their defense work in the State of Michigan. This correspondence would then be followed up by a personal contact with the persons handling the distribution of defense files for that particular insurance company.

You have requested the Committee's opinion as to the propriety of each of the above proposals. Additionally, it appears you wish to be appraised, in a general sense, of the state of the law in Michigan with respect to advertising by an attorney.

In Bates v. State Bar of Arizona 433 US 350 (1977), the United States Supreme Court held that states could not enforce a blanket prohibition on the truthful advertising of routine legal services. (For a more comprehensive discussion of the background cases and events concerning advertising and solicitation see C-218 and CI-457). In accordance with the Bates decision, the Michigan Supreme Court issued Administrative Order 1978-4 that states:

    "A lawyer may on behalf of him or herself, partner or associate, or any other lawyer affiliated with him or 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."

Since the advent of Administrative Order 1978-4 the one-year limitation has been periodically extended so that now the Order is considered to be the permanent rule. Under the Michigan rule then, as interpreted by this Committee, attorney communications must in the first instance satisfy two criteria. First, the communication must not be false, fraudulent, misleading or deceptive. Secondly, the communication must not be in violation of FR 2-103 or DR 2-104, expressly retained by Administrative Order 1978-4, concerning solicitation, as solicitation in most cases will continue to be prohibited. It is with these established standards in mind that your suggested proposals must be analyzed.

Prior to proceeding with a response to your proposals there is a preliminary matter which is of some concern. You indicate that you have become associated with several other attorneys but your inquiry is somewhat vague as to the precise type of relationship you share with them, In CI-366 this Committee opined:

    "Attorneys who are neither partners, associates nor members of a professional corporation but who share office space and facilities should . . . avoid a misrepresentation of their professional relationship."

This general principle espoused in CI-366 is primarily based upon DR 2-102. While it is true that DR 2-102 has been suspended to the extent it is in conflict with Administrative Order 1978-4, the language relied on in DR 2-102 to support CI-366 is not in conflict in this instance. It would be misleading for attorneys to indicate either expressly or impliedly a relationship that did not in fact exist. Misleading communications are expressly prohibited by Administrative Order 1978-4. In applying this standard to your inquiry it would be very difficult to approve of advertising which included attorneys with whom you did not have a formal professional relationship such as a partnership, professional corporation or the like. Therefore, an underlying premise of the following opinion is that such a processional relationship does in fact exist.

As to your desire to prepare a general information circular to distribute in your surrounding neighborhood announcing, to the public, that you are in the practice of law, and the areas of practice yourself, and the attorneys you are associated with, have knowledge, experience and expertise, a somewhat analogous situation was considered in C-218. There the Committee considered a request as to the ethical propriety of mailing a circular within a given geographical area. The circular was to provide recipients with information about limited areas of law, and further, provide an opportunity to obtain answers, from the advertising attorneys, to any questions that someone receiving the circular might have. The Committee held that such a circular would be a form of improper solicitation in that the circular unduly prompted a response to the attorney-sender. Therein it was stated:

    "The distinction to be drawn between permissible public communication and improper solicitation does no lie in the mode of communication, but in its content. General communications that tell the public about legal services available, that inform about fees and other costs and about the attorney's qualifications, and that do not unduly prompt a response, constitute permissible advertising. Communications directed t targeted potential clients with an identified need for particular legal services, framed t elicit a direct response to the attorney-sender, constitute improper solicitation."

Under your proposal there appears to be no such attempt to unduly prompt any direct response as a result of a particular legal need of the recipients of the circular. However, you should refrain from classifying any particular service provided by you or your associates as being a "specialty" or having "expertise" as opposed to having experience, in that area. As stated in CI-457, such a representation could be misleading in that Michigan does not recognize specialties or expertise at this time except in the areas of patent, trademark and admiralty law.

With regard to your next proposal, concerning the propriety of sending out formal announcements to friends and relatives announcing that you are now in private practice, refer to DR 2-101 that states:

    "(A) A lawyer or law firm may use professional cards, professional announcement cards, . . . as follows, in dignified form:

      "(2) A brief professional announcement card stating new or changed associations or addresses, change of firm name, or similar matters pertaining to the professional office of a lawyer or law firm, which may be mailed to lawyers, clients, former clients, personal friends, and relatives . . . . It shall not state biographical data except to the extent reasonably necessary to identify the lawyer or to explain the change in his or association, but it may state the immediate past position of the lawyer.

Thus, even prior to Administrative Order 1978-4 such an announcement, if appropriately constructed, would have been permitted when sent to relatives and close personal friends. Since DR 2-102 does not apply, to the extent it is in conflict with Administrative Order 1989-4, you may include other information, not specified in DR 2-102, in your communiqué as long as the information is not "false, fraudulent, misleading or deceptive." However, since such an announcement is specifically directed to particular recipients, the announcement may not suggest any direct response to the attorney or concern an identified legal need of the recipient.

In regard to your next proposal, i.e., the distribution of your professional cards to the public, either by yourself or through other individuals, such conduct would also be governed, in part, by Administrative Order 1978-4. In this respect your business card must not be false, misleading, fraudulent or deceptive and such other individuals may not be paid a fee of any sort to recommend your services. Compensating or giving anything of value to a person or organization for recommending or securing your employment would be in direct violation of DR 2-103, the effect of which was expressly exempted from the constraints of Administrative Order 1978-4. Additionally, the cards may not be distributed to individuals having a known need for legal services since that would constitute impermissible solicitation. Also, there are inherent dangers in permitting others to distribute professional cards since there is a strong likelihood that distribution will be made to those persons the distributor knows are in need of legal services. A lawyer will be strictly accountable for the conduct of those to whom he or she entrusts professional cards for distribution.

The preparation of a printed sign indicating your name, address and the type of work your office is handling, is also governed by Administrative Order 1978-4. As for placing such signs at various business establishments within your general neighborhood, such conduct does not appear to violate Administrative Order 1978-4. However, as stated in CI-476, the location of such a sign may be relevant in determining its propriety. There it was held that placing such a sign next door to a state agency which conducts administrative hearings on license restoration would be improper in that the communiqué was directed to targeted potential clients in need of particular legal services, and was framed so as to elicit a direct response. In any event it should be again noted that such businesses where you place signs might not be compensated for recommending your services.

Finally, concerning your desire to contact various insurance companies throughout the state and arrange for personal follow-up contract to solicit specific legal employment such conduct is improper. It is clear that the proposal you have in mind involves "communications directed to targeted potential clients with an identified need for particular legal services, framed to elicit a direct response to the attorney-sender." And thus constitutes improper solicitation.

In conclusion, you still must make a personal decision in each case as to whether any of your communiqués are in any way false, fraudulent, misleading, or deceptive.

 
     

 

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