September 3, 1982
A lawyer may send a letter to employers stating that the lawyer is available to represent employers in administrative agency matters opposing claims by former employees for unemployment compensation, provided the mailing does not contain fraudulent, misleading or deceptive information and is not circulated to persons having already identified needs for specific services.
References: MCPR DR 2-105; C-218; CI-774, CI-782; Supreme Court Admin Order 1978-4.
A lawyer proposes to mail letters to area employers to inform them that the lawyer is available to represent persons involved in unemployment compensation matters.
Ever since the United States Supreme Court held that truthful advertising of legal services are protected by the United State constitution there have been many inquiries and much discussion as to what a lawyer may and may not do to advertise his services and to what extent the lawyer may solicit retainers.
Michigan Supreme Court Admin Order 1978-4 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. Except for DR 2-103 and DR 2-104, Disciplinary Rules in conflict with this order are suspended for a period of one year."
By subsequent Administrative Orders, the Court has continued this Order in effect "until further order of the Court."
"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."
The Michigan Code of Professional Responsibility recognizes only two areas of specialization, (1) patent and trademark law, and (2) admiralty law. MCPR DR 2-105.
In CI-774 a law firm wanted to make known to the financial institutions in a given area that it was available for "these rather specialized types of legal services." The firm proposed to circulate a letter to financial institutions setting forth in part that the firm "is instituting . . . what we feel is a low cost program for foreclosing mortgages by advertisement and we would be pleased to provide details for our program for you. We also offer generally a wide range of legal services for financial institutions." This was followed by an invitation to contact the officer of the law firm.
It was the opinion of the committee in CI-774 that the proposed communication was sufficiently general in nature and that it left the recipient wholly free to respond or not according to his or her own judgment. Further, the communication does not fall within the prohibition against direct advertisement to specific potential clients with an identified present need for legal services and therefore constitutes permissible advertising of the availability of lawyer services. CI-774 concluded that a law firm could send a general mailing to financial institutions not known to have a specific, identifiable need for a lawyer to handle a specific, known matter, announcing the firm's availability to do legal work and inviting inquiry.
CI-782 was furnished in response to a request inquiring as to whether it is ethically proper to send an advertisement mailing to business entities noting the existence of individual specialized areas of the law firm's practice, to wit: labor and tax law expertise. The addresses would be businesses the sender believed may be desirous and in need of the specialized services. The committee was of the opinion that the brochure could be circulated provided the information contained therein is not "false, fraudulent, misleading or deceptive," and further provided it is not directed to persons having already identified needs for specific services. CI-782 concluded:
"Given the present status of the advertising rules, lawyers are free to disseminate just about any information concerning themselves and or their practices so long as the information is not false, fraudulent, misleading, or deceptive. Likewise, the present status of the advertising rules permit lawyer to send their informative materials to individuals, so long as the information is not directed to an individual or group of individuals that have an already identified need for legal services, urging the recipient to employ the services of the lawyer-sender."
The proposed mailings do not violate ethics rules or Admin Order 1978-4.