November 14, 1984
A lawyer may accept professional employment arising out of participation in an estate planning seminar, so long as the lawyer does not emphasize his or her experience or reputation, nor undertake to give individual advice, when speaking at the seminar.
References: MCPR DR 2-104(A)(2) and (4); C-218; Bates v. State Bar of Arizona, 433 US 350 (1977); Supreme Court Administrative Order 1978-4. CI-238, CI-313 and CI-977 are superseded.
A lawyer has been asked to participate with a tax accountant and a life insurance specialist in two estate planning seminars for the general public. One seminar charges an admission fee, while the other does not. The seminars are sponsored by insurance agencies and/or brokers which send invitations to their customers or to others through the use of mailing lists.
The lawyer asks whether it is ethical to accept professional employment in the area of estate planning from persons attending the seminars.
MCPR DR 2-104(A)(2) and (4) state:
"(A) A lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice, except that:
". . .
"(2) a lawyer may accept employment that results from his participation in activities designed to educate laymen to recognize legal problems, to make intelligent selection of counsel, or to utilize available legal services if such activities are conducted or sponsored by a qualified legal assistant organization;
". . .
"(4) without affecting his right to accept employment, a lawyer may speak publicly or write for publication on legal topics so long as he does not emphasize his own professional experience or reputation and does not undertake to give individual advice . . . ."
MCPR DR 2-104(A)(2) seems to prohibit professional employment arising from a seminar unless the seminar is conducted or sponsored by a "qualified legal assistance organization," while MCPR DR 2-104(A)(4) would permit employment arising from public speaking by a lawyer so long as the lawyer does not emphasize his or her professional experience or reputation and does not undertake to give individual advice.
Prior opinions have stated, with some reluctance, that MCPR DR 2-104(A)(2) controls in the context of a "seminar" and that professional employment arising from a seminar may not be accepted unless the seminar is conducted or sponsored by a qualified legal assistance organization. See MCPR DR 2-103(A)(1) through (4); CI-238, CI-313, CI-977. The seminars in this inquiry are not conducted or organized by such a group.
DR 2-104(A)(2) does not exclusively control in the case of a seminar. Instead, that subsection must be read together with DR 2-104(A)(4) in ascertaining the scope of permissible conduct. When the two sections are read together, it becomes apparent that subsection (2) allows a broader range of conduct than subsection (4), while at the same time more severely limiting the context within which that conduct may take place. For example, subsection (4) allows the acceptance of professional employment out of any public speaking engagement, so long as the lawyer does not emphasize his or her own experience or reputation and does not undertake to give individual advice when speaking. Subsection (2) does not contain these limitations, and a lawyer could presumably emphasize his or her experience and undertake to give individual advice, and still accept professional employment, so long as the event is sponsored by a "qualified legal assistance organization."
Because the seminars are not sponsored by a "qualified legal assistance organization," the lawyer may not accept professional employment arising from the seminars if the lawyer's own experience and reputation is emphasized, or if the lawyer undertakes to give individual advice when speaking. DR 2-104(A)(2). If the lawyer avoids such specific emphasis, however, the lawyer may accept professional employment pursuant to DR 2-104(A)(4). To the extent that opinions CI-977, CI-313 and CI-238 suggest otherwise, they are superseded.
The conclusion reached in this opinion is supported by the recent changes in rules governing solicitation generally. Most notable is the decision in Bates v. State Bar of Arizona, 433 US 350; 97 S Ct 2691; 53 L Ed 2d 810 (1977). In Bates, the Court held that the First Amendment prohibited a blanket suppression of advertising by lawyers, while acknowledging that such efforts were subject to reasonable regulation, including restraints on in-person solicitation. Bates, 433 US 350 at 383-384. By means of Administrative Order 1978-4, the Michigan Supreme Court followed suit and provided that a lawyer may "use or participate in the use of any form of public communication that is not false, fraudulent, misleading, or deceptive." 402 Mich 1xxxvi (1978). Although the Administrative Order expressly did not suspend the operation of MCPR DR 2-104, it does by implication provide guidance as to the manner in which that provision should be interpreted. Finally, in August of 1979, this Committee promulgated Formal Opinion C-218, which allows advertising by mail which is general in nature and not directed to specific potential clients with an identified present need for legal services.
The aim of these authorities seems clear: while lawyer advertising is protected, reasonable restraints may be applied, including restraints on in-person solicitation or communications otherwise directed toward specific potential clients with identified needs for legal services. MCPR DR 2-104(A)(4) likewise grows out of the same concerns and reaches the same goal.