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Ethics Opinion

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C-218

August, 1979

SYLLABUS

    A lawyer may properly advertise legal services by mail. The advertising will not constitute impermissible solicitation if it is general in nature and is not directed to or intended for potential clients with an identified present need for legal services.

    References: MCPR DR 2-103, DR 2-104, Bates v. State Bar of Arizona, 433 US 350 (1977); Supreme Court Admin Order 1978-4.

TEXT

The Committee has consolidated several requests for opinions concerning the propriety of an attorney advertising legal services by mail.

A distinction can be drawn between advertising and improper solicitation. Direct mail advertising by a lawyer, as discussed below, is permitted.

In Bates v. State Bar of Arizona, 433 US 350; 53 L Ed 2d 810; 97 S Ct 2691 (1977), the United States Supreme Court held that truthful advertising of legal services is protected by the United States Constitution. Subsequently the Michigan Supreme Court issued Administrative Order 1978-4 which provides:

    "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."

The order places no restriction on the mode of communication. Mail is simply one of several modes for making known the availability of legal services. For some lawyers it may be more economical mode that radio, television or newspapers. Though mail advertising may possibly be more difficult to police than modes more open to public view, its written nature does preserve a record for later review. The Committee can find no valid distinction among the several modes of communication by which lawyers might make known the availability of their services.

On the other hand, Admin Order 1978-4 explicitly preserves the prohibition against solicitation contained in MCPR DR 2-103 and DR 2-104. The recommendation of professional employment or the suggestion of the need for legal services remains restricted by these rules.

In discussing these rules in Bates, the Court recognized them to be "prophylactic measures," the purpose of which is to prevent harm before it occurs. In Ohralik v. Ohio State Bar Ass'n, 436 US 447 (1978), the Court ruled that "the state has a strong interest in adopting and enforcing rules of conduct designed to protect the public from harmful solicitation by lawyers whom it has licensed."

The test is whether the state has demonstrated "a subordinating interest which is compelling." Bates v. City of Little Rock, 361 US 516 (1960). The focus is on appellant's conduct, Ohralik, 56 L Ed 2d 444, 458. Regulation is, therefore, a proper subject of state regulation and an area preserved by the order.

Applying these general concepts, the committee concludes that direct mail communications from a lawyer (like communications using any other mode) may not be directed to, or be intended for, potential clients with an identified present need for legal services. To be permissible, communications must be general in nature, making known the services available from the lawyer-sender, along with such other information as may be within the purview of Admin Order 1978-4, such as fees and costs, office hours, etc., leaving the recipients wholly free to respond or not according to their own judgment.

The four specific requests for opinions on mail advertising received by the committee differ in detail and approach. Since the inquiries addressed all relate to communication whose purpose is pecuniary gain, no discussion is directed to In re Primus, 436 US 412; 56 L Ed 2d 417; 98 S Ct 1893 (1978). Neither does this opinion discuss State Bar Grievance Administrator v. Jacques, 401 Mich 516 (1977), on remand 407 Mich 26 (1979), since the Court's opinion in that case did not address the question of direct solicitation of potential clients.

One proposes the use of direct mail as a "method of advertising." The mailing would include a cover letter and brochure describing the work done by the firm, and fees charged. Since the committee was not furnished copies of either document, this opinion is based on an assessment of the general proposition, in light of the general concepts outlined above, rather than upon an analysis of specific materials to be mailed. We assume that the brochure is general in nature, is identical for all recipients, and is a general "occupant" mailing to a geographical area and not a targeted or identified need legal service. We also assume that the cover letter is general in nature and extends no invitation to respond. The committee believes that this mode of communication would be permissible.

A second inquiry proposes a "mass mailing," inviting appointment as a labor arbitrator. It would use office letterhead and enclose a brief resume indicating legal training and professional experience. The proposed letter would be directed to approximately 500 nonlawyers "selected as officials responsible for personnel and employment relations matters." The letter covers such matters as fees and states in part, "In the event that you determine to select an arbitrator, I hope that you will feel free to call upon [the lawyer] . . . ." This proposed mailing would be permissible if modified to eliminate the final sentence suggesting that the recipient contact the sender.

Both of the above proposals are general in nature and do not pinpoint a present identified needed service. They make known to the recipient available services provided by the sender, either general in nature or through limitation of practice. The first does not invite a specific response, but leaves the recipient in a position to investigate further or totally disregard the communication, if that is the person's choice. The second, as modified, would do the same.

A third inquiry proposes distribution of a brochure which describes the work of members of the firm in the field of labor law, describing the background and experience of the lawyers and indicating clients for whom such services have been performed. The distribution would be "to a specific segment of the public," namely, companies "served with representation petitions" before either the National Labor Relations Board or the Michigan Employment Relations commission.

A fourth request involves mailing a circular within a given geographical area, intended to provide recipients with information "on limited legal areas" and to "provide an opportunity to have questions relating to the legal topic answered." The mailing would include a State Bar brochure on wills, together with a letter which suggests that if the recipient has any questions, the recipient should feel free to contact the sender. A card would be enclosed for return to the lawyer if the recipient is interested in being contacted "for an appointment to discuss wills." A space is also included for an indication of interest in other legal matters.

The Committee believes that these two proposals breach the permissible limits and constitute improper solicitation. In one instance the communication is directed to potential clients who clearly have an identified present need for legal services. In the other, the communication addresses a legal service generally needed by the public and unduly prompts a response to the lawyer-sender.

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 which tell the public about legal services available, which inform about fees and other costs and about the lawyer'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 lawyer-sender, constitute improper solicitation.

The use of proper advertising by lawyers can minimize any "need" supposedly met by solicitation, by informing members of the public about legal services they may want to consider, while avoiding the potential for overreaching inherent in solicitation, which cannot be adequately policed on a case-by-case basis.

 
     

 

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