September 1, 1983
As long as there is no already identified need for legal services, a lawyer may send advertising to businesses and to other lawyers indicating his or her availability to be retained in labor law matters.
References: C-218; Administrative Order 1978-4.
This inquiry concerns a plan by a lawyer to advertise his/her availability to assist small and medium size businesses in labor law matters. Additionally, the lawyer plans to send announcements to law firms indicating his/her availability to act "Of Counsel" to the firm in labor law matters.
The Michigan Supreme Court adopted the following standard in Administrative Order 1989-4:
"A lawyer may on behalf of himself/herself, his or her partner or associates, or any other lawyer affiliated with him or her of the firm, use or participate in the use of any form of public communication that is not false, fraudulent, misleading or deceptive."
The Order places no restriction on the mode of communication. The following language from C-218 provides that a mailing to the general public is appropriate:
"An attorney may properly advertise his or her legal services by mail. Such advertising will not constitute impermissible solicitation if it is general in nature and is not directed to or intended for potential clients with an identified present need for legal services."
C-218 further provides that direct solicitation to a targeted class of potential clients, as opposed to the general public or general group of businesses needing such legal services, is not permissible:
"Applying these general concepts, the Committee concludes that direct mail communications from an attorney (like communications using any other mode) may not be directed to, or be intended for, potential clients with an identified present need for legal services. To be permissible, communications must be general in nature, making known the service available from the attorney-sender, along with such other information as may be within the purview of Administrative Order 1978-4, such fees and costs, office hours, etc., leaving the recipient wholly free to respond or not according to his or her own judgment."
Thus, in order for a mass mailing to be proper, it must meet the C-218 test that distinguishes between "general" and "specific" mailings. The market which he or she seeks will measure the conduct of a lawyer in advertising to contact or influence. For example, if the lawyer obtained a list of companies whose labor contracts were due to expire in the next 60 days and then "targeted" them for a mailing, such conduct would not be ethically proper. Similarly, if a class action lawsuit claiming sex discrimination were filed against a number of businesses in an industry, it would not be appropriate for the lawyer to contact the businesses involved in the litigation to advise them of his or her knowledge of employment discrimination law. Such a mailing would be inappropriate because the businesses would have an already identified need for a specific service.
On the other hand, if the mailing were sent to all the businesses located in a particular ZIP code, this would probably be permissible even though, in a sense, the lawyer was "targeting" the mailing based upon an identified geographic location. A mailing sent to businesses all in one industry, such as dry cleaners or tropical fish stores, would probably be permissible. Again, although the businesses were "targeted," the design of the mailing campaign was not to contact businesses with an already identified need for a specific service.
A lawyer may send announcements to law firms concerning his or her availability to act "Of Counsel" in labor law matters. It is noted that the client must be informed and consent to any "of counsel" retainer. The possible abuses of advertising that might occur with the public are less likely to occur since law firms are a more sophisticated consumer of legal services.