March 1, 1991
A lawyer may send a truthful and nondeceptive targeted letter to a potential client known to face a particular legal problem.
Notwithstanding the foregoing, the letter may not be sent if the potential client has made known to the lawyer a desire not to be solicited by the lawyer, or the solicitation involves coercion, duress or harassment.
References: MRPC 7.1, 7.3; Shapero v Kentucky Bar Ass'n, 486 US 466 (1988).
Prompted by a general newspaper story about a high school athlete which referred to a serious accident which the athlete suffered when seven years old, a lawyer proposes to send a letter to the athlete's parents advising them of certain rights arising out of the accident. The proposed letter, on the lawyer's letterhead, is as follows:
"According to a recent newspaper article, your son/daughter was injured in an automobile accident.
"A child has until his/her 19th birthday in which to file a personal injury claim or, if necessary, a lawsuit against the person(s) responsible for the accident. If the circumstances warrant it, the claim or lawsuit may be filed against a parent or other relative. These types of claims are usually covered by insurance.
"If you would like to obtain a legal opinion as to whether your child has a claim, you may call your regular attorney if you have one; or any other attorney of your choosing including the undersigned.
"If any money is recovered for a child under the age of 18, the net proceeds (after payment of the attorney fee and reimbursement of out-of-pocket expenses) would have to be preserved for the child, under Probate Court control, until age 18.
"The purpose of this letter is to make you generally aware of your child's rights. This form letter has been approved for use by a State Bar of Michigan Ethics Committee.
"Yours very truly,"
MRPC 7.3 states:
"(a) A lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. The term 'solicit' includes contact in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful, nor does the term 'solicit' include 'sending truthful and nondeceptive letters to potential clients known to face particular legal problems' as elucidated in Shapero v Kentucky Bar Ass'n, 486 US 466; 108 S Ct 1916; 100 L Ed 2d 475 (1988).
"(b) A lawyer shall not solicit professional employment from a prospective client by written or recorded communication or by in-person or telephone contact even when not otherwise prohibited by paragraph (a), if:
"(1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or
"(2) the solicitation involves coercion, duress or harassment." Emphasis added.
The United States Supreme Court in Shapero reversed a decision of the Kentucky Supreme Court which had prohibited targeted, direct mail solicitation by lawyers for pecuniary gain, on the basis that such a prohibition was inconsistent with the First Amendment. The Court noted that just because direct mail solicitation presents opportunities for abuses or mistakes that this "does not justify a total ban on that mode of protected commercial speech," since the abuses or mistakes could be regulated by the state by requiring that the solicitation letter be filed with a state agency. For example, see MRPC 7.2(b) requiring lawyers to keep copies of such communications for two years. In furtherance of this point, the Court said:
"As a general matter, evaluating a targeted advertisement does not require specific information about the recipient's identity and legal problems any more than evaluating a newspaper advertisement requires like information about all readers. If the targeted letter specifies facts that relate to particular recipients (e.g., 'It has come to my attention that your home is being foreclosed on.'), the reviewing agency has innumerable options to minimize mistakes. It might, for example, require the lawyer to prove the truth of the fact stated (by supplying copies of the court documents or material that led the lawyer to the fact); it could require the lawyer to explain briefly how she discovered the fact and verified its accuracy; or it could require the letter to bear a label identifying it as an advertisement . . .[citations omitted] or directing the recipient how to report inaccurate or misleading letters. To be sure, a state agency or bar association that reviews solicitation letters might have more work than one that does not. But '[o]ur recent decisions involving commercial speech have been grounded in the faith that the free flow of commercial information is valuable enough to justify imposing on would-be regulators the costs of distinguishing the truthful from the false, the helpful from the misleading, and the harmless from the harmful.'[Citations omitted.]"
It is not improper, therefore, for the lawyer to send an appropriate communication of the type described to the athlete's parents.
MRPC 7.1 requires communications concerning a lawyer's services not to be false, fraudulent, deceptive, or misleading, compare lawyers' services, or give an unjustified expectation of results which may be achieved. The Committee is not a fact-finding body and has no resources available to verify the accuracy or truthfulness, etc., of any specific letter. Therefore, the Committee does not approve any particular letter or content. The last sentence in the proposed letter suggesting any sort of approval of the particular communication used is therefore inappropriate and misleading, and must be removed.