November 11, 1981
A lawyer may choose as a method of advertising the distribution of a redeemable coupon at a discount fee price which coupon would be mailed by an advertising company to a specified number of private homes together with a group of coupons for other services such as dental, retailers, etc.
The targets of the mailing must not be a group of potential clients with an identified present need for legal service.
The substance of the advertisement on the coupon must adhere to the standards of the administrative Order 1978-4 of the Michigan supreme Court.
References: DR 2-106(A) and (B); CI-218; Administrative order 1978-4.
A lawyer is approached by an advertising company with a proposition to advertise for a certain flat rate in the company's coupon mailing. The lawyer would purchase a coupon that would be mailed out by the company to 10,000 local homes. Each mailing would include 20 different coupons consisting of other local retailers, fast food chains, dentists, chiropractors, etc. There is a guarantee that the lawyer will be the only lawyer in that particular mailing.
The coupon would be printed by the advertising company subject to the lawyer's approval. Each coupon is the size of a regular business envelope.
The inquirer pose the following queries:
- Is this a permissible form of advertising for a lawyer?
- If it is permissible as a form of advertising, is it permissible to offer a certain percentage off the performance of some service if a client presents the coupon?
On many occasions this Committee has addressed the issue of advertising of legal services by various methods including direct mail. Since the Michigan Supreme Court adopted Administrative Order 1978-4, suspending most of the Disciplinary Rules on lawyer advertising, this Committee has ruled consistently that a lawyer may advertise the availability of legal services by any means to the extent that the publicized information is truthful. Administrative Order 1978-4 states in part:
"A lawyer may on behalf of himself or herself, partner, or associate, or any other lawyer affiliated with him or her or the 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, DR 2-104, Disciplinary Rules in conflict with this Order are suspended for a period of one (1) year."
In C-218, this Committee opined that advertising mailings must be generalized and "not directed to, or be intended for, potential clients with an identified present need for legal services." "Continuing further, the opinion stated ""To be permissible, communications must be general in nature, making known the services from the attorney-sender . . . including the recipient wholly free to respond or not according to his or her own judgment."
The query only generally identifies the target of the advertising as 10,000 local homes. On the assumption that those who will be the recipients of the advertising coupon booklet are not "potential clients with an identified present need for legal services," the coupon form for legal advertising would not seem to be ethically offensive.
The factual situation does not contain any indication of the substance of the advertisement. Accordingly, the Committee is unable to advise as to its propriety. However, the substance must conform to the guidelines set forth in the Supreme Court Administrative Order.
In regards to the second query regarding the propriety of a discount on presentation of the coupon, there does not appear to be anything unethical about that practice.
DR 2-106(A) provides that "a lawyer shall not enter into an agreement for, charge, or collect as illegal or clearly excessive fee." DR-2-106(B) foes on to set forth numerous guidelines as to what may or may not be considered excessive.
As long as the fees to be charged do not violate the ethical considerations concerning those charges, the fact of a discount in the price that might otherwise be charged is merely a business determination of the lawyer, and not an ethical problem.