October 17, 1980
A lawyer may not ask a third party to recommend his services to prospective clients where the third party is not able to serve as an impartial "buffer" between the client and the lawyer's solicitation, and where the third party is not a member of a group listed in DR 2-103 (D) (1) through (4). Requests for referrals may not contain false, fraudulent, misleading or deceptive claims of specialization or self-laudatory statements.
Your request for advice on the letter you propose to send to marital counselors has been referred to me as a member of the State Bar Committee on Professional Ethics.
We must disagree with your assertion that State Bar of Michigan v. Jaques, 407 Mich 26 (1979), now gives a lawyer carte blanche in truthful solicitation of third-party referral services. Shortly before the Jaques decision, the Michigan Supreme Court adopted Administrative Order 1978-4, which provides as follows:
"A lawyer may not on behalf of his or herself, his or her partner or associate or any other lawyer affiliated with him or her or his or her 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 2-104, disciplinary rules in conflict with this order are suspended for a period of one year."
By Administrative Order 1979-7 (August 31, 1979), issued shortly after the Jaque decision, this Order was extended in the effect "until further order of the Court." The propriety of the letter you seek to distribute is therefore governed by Order 1978-4 and DR 2-103 and DR 2-104. 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 or her partner or associate, or any other lawyer affiliated with him or her or his or her 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 . . . (2) he may cooperate with the legal service activities of any of the offices or organizations enumerated in DR2-103(D)(1) through (4) [which include: (1) a legal aid office or public defender office; (2) a military legal assistance office; (3) a lawyer referral service operated, sponsored or approved by a bar association; (4) any bona fide organization that recommends, furnishes, or plays for legal services to its members or beneficiaries provided that: (a) such organization is so organized and operated that no profit is derived by it from the rendition of legal services by lawyers; (b) neither the lawyer nor his or her partner shall have initiated or promoted such organization for the purpose of providing financial or other benefit to such lawyer; (c) such organization is not operated for the purpose of procuring legal work; (d) the member or beneficiary for whom the services are furnished is recognized as the client of the lawyer; (e) any member or beneficiary who is entitled to have legal services furnished may select counsel other than that furnished]."
In Formal Opinion C-221 (February, 1980), the Ethics Committee put together the Jaques decision, Administrative Order 1978-4, and DR 2-103(B) and (C), to decide that a lawyer would violate the Code of Responsibility by contracting with the Welcome Wagon organization to deliver a welcome letter and a card or pamphlet to newcomers to the community. We are aware that, unlike the Welcome Wagon situation, your latter would never reach the prospective client himself. We do not, however, think that the distinction is sufficient to remove you from the requirements of DR 2-103(C).
We find nothing to indicate that marital counselors have any "expertise to make a detached and informed evaluation of [your] qualifications before passing any recommendation along to [their clients]." 407 Mich at 38. We do not think that a marital counselor is an appropriate person to stand as a "buffer" between the lawyer and the prospective client. Indeed, there is "a substantial possibility that the persons who receive such material from a [marriage counselor] might assume that the [marriage counselor] is recommending or endorsing that lawyer's abilities, when in fact the [marriage counselor] is most likely unqualified to do so." Formal Opinion C-221.
Just prior to the Jaques decision, this Committee issued Informal Opinion CI-422 (June 18, 1979), which provides:
A lawyer may accept a client referred by a third-party layman so long as such referral is not made at the lawyer's request, and so long as the lawyer has not given and does not give any compensation or anything of value to such third-party layman for such referral."
It appears that your letter is not simply to inform marital counselors of your availability, but to persuasively request them to recommend your services. Such a request would have been a violation of DR 2-103(C) prior to Jaques, and we believe that it remains one after that decision. Having decided that the letter you propose to send would be a violation of DR 2-103(C), we still think it productive to deal with the specific points made in your letter.
Once again, Administrative Order 78-4 is applicable insofar as it affects DR 2-101(A) and (B) and DR 2-105(A) which prohibit advertising or solicitation in which the lawyer claims to be a specialist or which contain self-laudatory language. In several past opinions, this Committee has uniformly attempted to prevent any such claims. For example, in CI-15 we decided it would be inappropriate for a lawyer to hold himself out as a "family counselor at law." CI-136 provided that it would be acceptable to distribute a dignified letter to selected lawyers notifying them of a lawyer's "availability" for consultation in a "particular branch of law," but that such a letter should not contain "a representation of special competence" or self-laudatory statements. It is not entirely clear what impact Administrative Order 1978-4 has on these decisions, although it appears that self-laudatory statements and claims of specialization may be made where "not false, fraudulent, misleading or deceptive." You should note CI-357 in which this Committee decided that the use of a trade name by a lawyer in private practice would be misleading under Administrative Order 1978-4. We think that your claim of "specialization in hand-crafting individual domestic relations and personal injury cases to the clients special requirements" is misleading in that it implies that you are unique in this regard. Because this type of personalized care is required by a lawyer's oath, we do not think that it should be considered unusual. The claim that you are acquainted with medical specialists who are willing to testify implies that you have a stable of experts who are prepared to testify on cue. This is either a fraudulent practice or a deceptive description of you relationship with the "experts," neither of which, I am sure, described your actual relationship.
We find your labeling of various court pleadings as "technique" to be puzzling as well as misleading. One may only ask a Court to adopt a particular position - one does not use a technique in developing a theory of a case, no matter how "innovative" that theory may be. The implication that quickly expelling an offender from the marriage home or using thorough factual preparation are "techniques" that you alone have perfected is overreaching as well as misleading.
In conclusion, we would direct your attention to the language of the Supreme Court in Ohralik v. Ohio State Bar Ass'n, 98 S Ct 1912 (1978):
"While lawyers act in part as 'self-employed businessmen,' they also act 'as trusted agents of their client, and as assistants to the court in search of a just solution to disputes'." 98 S Ct at 1919.
The implication that justice may be achieved via "techniques" such as "acquaintance with medical specialists who are willing to testify" and "innovative" approaches runs directly contra to our obligation as "assistants to the court."
While this opinion is that of the undersigned, it has been circulated to the full Committee for comment prior to release.