June 25, 1982
It is ethically improper for a law firm to solicit referral recommendations from an identified professional group - which is inconsistent with the noted provisions of DR 2-103. It is likewise ethically improper to encourage the operation of said referral services in the guise of an advertisement media scheme.
References: DR 2-103(C)(1)-(4); C-218; Administrative Order 1978-4.
A lawyer proposes to send an informational letter to the local medical community informing of the lawyer's credentials and interest in developing a legal practice oriented towards representing the "accidentally injured person." The precise purpose of sending such an information letter is to obtain public exposure. The medical professional community would act as intermediaries to make recommendations and or client solicitations or assignments on the lawyer's behalf.
Since the Michigan Supreme Court adopted Administrative Order 1978-4, this Committee has ruled on a number of occasions 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 provides in part, as follows:
"A lawyer may on behalf of himself, his partner or associate, or any other lawyer affiliated with him or his 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."
MCPR DR 2-103(C) provides:
"A lawyer shall not request a person or organization to recommend or promote the use of his services or those of his partner or associate, or any other lawyer affiliated with him or his firm, as a private practitioner, except that:
"(1) he may request referrals from a lawyer referral service operated, sponsored, or approved by a bar association and may pay its fees incident thereto; and
"(2) he may cooperate with the legal service activities of any of the offices or organizations enumerated in DR 2-103(D)(1) through (4) and may perform legal services for those to whom he was recommended by it to do such work . . . ."
As acknowledged by the inquiry, the recommending intermediary will be a lay person within the definitional constraints of the legal community. In C-218, the Committee reasoned:
"The use of an intermediary who is not an attorney to solicit potential clients may also present other risks. The non-lawyer intermediary may be more likely to misstate the applicable law or the client's legal remedies, either through inadvertence or ignorance or on purpose, in attempting to persuade the client to employ a specific attorney, and may even attempt more extreme, less ethical conduct than an attorney might use in soliciting clients because he might not feel bound to adhere to the standards incorporated into the Code of Professional Responsibility. The use of intermediaries would also significantly increase the likelihood that the privacy of potential clients would be invaded. Finally, the potential for all these harms increases if the intermediary has or perceives that he might have an interest in successfully soliciting clients. Therefore, the use of intermediaries is just as likely to pose dangers that the state has a right to prevent as direct in-person solicitation by an attorney."
The rationale for precluding intermediaries other than those institutions explained under the provisions of MCPR DR 2-103(C) to make such recommendations is to avoid undue influences and or misstatements as to law or fact in attempting to persuade a potential client to employ a specific lawyer - especially under the circumstances as noted when the potential client will not have any previous knowledge of the existence or qualifications of a selected law firm. None of the exceptions would apply to the facts in this inquiry. In C-218 this committee affirmed the prohibition against solicitation contained in MCPR DR 2-103. The Administrative Order, placed no restrictions on the mode of communication.
The proposed advertisement referral/solicitation scheme is ethically inappropriate.