July 2, 1981
The Michigan Code of Professional Responsibility prohibits a lawyer from using the services of group life insurance agents from passing out pamphlets to their clients informing them of t he attorney's special talents and assets in the field of wills and trusts.
References: DR 2-103, DR 2-104; Bates v State Bar of Arizona, 433 U.S. 350 (1977).
An opinion has been requested as to whether certain contemplated action by a lawyer violates the Code of Professional Conduct. You have presented a proposed arrangement in which you and other attorneys, as an aside to their respective practices, will be forming a professional corporation with the intent of limiting the work of the professional corporation to the drafting of wills and trusts. An opinion is asked as to whether it would be proper for a lawyer to arrange for several insurance agents dealing in group insurance to provide, upon request, one page pamphlets informing the interested parties of the professional corporation's services. There would be no remuneration to the agents for the disbursement of these materials.
A short review of the issue presented would bring in mind the Bates v State Bar of Arizona, 433 U.S. 350 (1977) which prohibited states from imposing a blanket bar on truthful advertising. In 1978 the Michigan Supreme Court issued an Administrative Order (1978-4) which permitted any advertising not false, fraudulent, misleading or deceptive. This Order suspended all disciplinary rules in conflict with the order except for DR 2-103 and DR 2-104. DR 2-103 (C) provides that a lawyer shall not request a person or an organization to recommend or promote the use of his or her services or those of his or her partner or associate, or any other lawyer affiliate with him or her as a private practitioner. Section (E) of this section prohibits a lawyer from accepting employment when the lawyer knows, or it is obvious, that the person who seeks the services does so as a result of conduct prohibitive under this disciplinary rule. DR 2-104(A) provides "a lawyer who has given unsolicited advice to a layman that the layman should obtain counsel or take legal action shall not accept employment resulting from that advice except that (exceptions not applicable)." This would apply also to an attorney using another person to give this unsolicited advice.
Although all forms of legal advertising have been permitted under the present Supreme Court Administrative Order, the Canons prohibiting solicitation of business are still effective, and must be followed by Michigan attorneys. CI-528, although permitting the distribution of attorney's individual professional cards to the public, either by themselves or through other individuals, provided such individuals are not paid a fee of any sort to recommend the attorney's services, ruled that attorneys, or other, may not distribute professional cards to individuals having any known need for legal services since such a distribution would constitute impermissible solicitation. C-218 permits most advertising including any form of public communication that is not false, fraudulent, misleading or deceptive so long as it is not directed to or intended for public communication that is not false, fraudulent, misleading or deceptive so long as it is not directed to or intended for potential clients with an identified present need for legal services. It should be pointed out that C-218 was issued after the opinion in State Bar Grievance administrator v Jocks which was decided in 1979. It would be improper for the several insurance agents, dealing with group life insurance, to provide pamphlets concerning the attorney services available from the attorneys of the professional corporation. Persons receiving the pamphlets would certainly be those "with an identified present need for legal services." The recipients would have a need for services for a specific type of service so that the giving to them by the insurance agents of pamphlets setting forth the qualifications of the professional corporation members as experts in the field of drafting of wills and trusts would amount to a solicitation and it would be prohibited under the Michigan Code of Professional Ethics. Indeed caution is indicated in presenting any advertising suggesting that attorneys are specialists in the field of wills and trusts. See CI-519.