July 9, 1980
It is improper for a lawyer to direct mail a "testimonial letter" to potential clients recommending and promoting the lawyer's professional services.
References: DR 2-103(C) and (D); C-218; Bates v. State Bar of Arizona, 433 US 350 (1977); State Bar Grievance Administrator v. Jacques, 407 Mich 26 (1979).
Inquirer has been made as to whether it is ethically proper to distribute, by mail, two forms of written communications promoting a lawyer's legal services.
The first item is a printed fold-over sheet entitled "Possession of a Christian Lawyer is Nine-Tenths of the Law." This circular sets forth professional status, law school attended, admission to practice in Michigan and before the U.S. Supreme Court, a $25.00 charge for an initial thirty to forth minute consultation and generalized information on why and when to consult with and how to find a lawyer.
In Bates v. State Bar of Arizona, 433 US 350 (1977), the United States Supreme Court ruled that states could not enforce a blanket prohibition on truthful advertising of routine legal services. In 1978, the Michigan Supreme Court issued Administrative Order 1978-4 that states:
"A lawyer may, on behalf of him 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, the Disciplinary Rules in conflict with this order are suspended for a period of one year."
The one-year limitation of Administrative Order 1978-4 has been extended indefinitely and, therefore, the existing Michigan Rule permits any form of advertising not "false, fraudulent, misleading or deceptive."
The Committee issued C-218 (1979) in response to a request for ethical guidance on mailing general information circular providing the recipients with information about limited areas of the law and, further, providing an opportunity to obtain answers, from the advertising attorneys, to questions which the recipient might have. In holding that such a circular would be a form of improper solicitation in that the circular unduly prompted a response to the attorney-sender, the Committee distinguished between permissible advertising and improper solicitation, as follows:
"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 attorney'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 attorney-sender, constitute improper solicitation."
C-218 allows Michigan attorneys to advertise legal services, by mail, but such notices must be generalized and not directed to potential clients with "an identified present need for legal services." The advertisement may be addressed to "occupant" and distributed throughout a geographical area. Thus, direct mail advertising is not per se prohibited, but the content must not be tailored to the needs of particular individuals believed interested in specific representation and urging the attorney-sender be retained.
It is not indicated to whom the circular will be directed and therefore, current standards of ethical propriety would permit you to mass mail the circular to the general public within the geographical area of your practice, provided no attempt is made to single out potential clients with an already identified need for a particular legal service.
The second item of communication requested is a "testimonial letter" from a Reverend ***, Pastor of the ***** Baptist Church, addressed to whom it may concern, and stating, in part "I *** would like to recommend to our churches and friends a fine Christian lawyer: licensed attorney at law, ***I have known for three and one-half years, I have lived and ministered in Michigan *** I heartedly recommend to you ***" In subsequent correspondence, dated *** you advise that the "testimonial letter" was written by the Minister "although encouraged" by you. In this connection, DR 20193(C) is relevant and states in part:
"(C) A lawyer shall not request (or encourage) a person or organization to recommend or promote the use of his or her services . . . as a private practitioner, except that: . . . ."
the exceptions relate to referrals from a "lawyer referral service . . ." approved by a Bar Association and would not apply to a Minister of the Gospel. DR 2-103(D) states in part:
"(D) . . . However, this does not prohibit a lawyer . . . from being recommended, employed or paid by or cooperating with, one of the following offices or organizations that promote the use of his or her services . . . if there is no interference with the exercise of the independent professional judgment on behalf of his or her client;"
The "offices or organizations" referred to in DR 2-103(D) include a legal aid office or public defender office, a military legal assistance office, a lawyer referral service operated and sponsored or approved by a Bar Association, or a bona fide organization that recommends, furnishes or pays for legal services to its members or beneficiaries provided, such organization has filed with the Michigan Supreme Court a copy of its legal services plan. The letter of recommendation written by Reverend *** a minister of the Gospel would not satisfy the requirements of DR 2-103(C) and (D). Further, DR 2-103(E) would not permit you to accept employment under circumstances where you know, or it is obvious, that the person seeking to employ your services does so as a result of any prohibited conduct.
The rationale for permitting the various legal assistance organizations to recommend or promote the use of an attorney's services is that the agencies are ostensibly staffed by trained personnel having the legal expertise to screen the qualifications of lawyers they recommend. There is no indication in the inquiry that the minister of the gospel is acting on behalf of any legal assistance organization or is otherwise by legal training qualified to recommend or promote your services. The recommendation of legal services requires professional judgment. The use of a non-legal intermediary to recommend and promote attorney services to potential clients is very likely to result in adverse consequences which the state has a legitimate and important interest in prohibiting. See State Bar Grievance Administrator v. Jacques, 407 Mich 26 (1979) in which a Supreme Court Justice stated that the union business agent "possessed" the expertise to make a detached and informed evaluation of (lawyer) Jacques qualifications before passing any recommendation along to his members. DR 2-103(C) and (D) prevent your use of the proposed "testimonial letter" and that DR 2-103(E) would further prohibit you from accepting any employment as a result of its use.