November 6, 1995
A lawyer may include in an otherwise proper direct mail advertising circular (1) a description of the lawyer's dedication to providing "affordable" services, (2) an invitation to call for a "no-cost informational interview," and (3) a statement of the fees the lawyer actually charges for enumerated services.
References: MRPC 7.1, 7.3(a); RI-169; CI-814.
A lawyer proposes to send a descriptive circular by direct mail to "private sector employers in Michigan" whose identities are to be ascertained from telephone directories or other generally available lists. The mailing would be made to such entities on a blanket basis, i.e., without regard to or knowledge that any addressees were then involved in any dispute or particular transaction in or about which the lawyer's services are offered or touted. The circular describes the lawyer's firm and its credo in generally glowing but non-specific terms, lists the particular kinds of services that the firm provides in the fields in which the firm specializes, and includes the resume of the lawyer whose name the firm carries.
The lawyer asks (1) whether the circular may ethically tout the firm as "affordable" among its other attributes and urge recipients to contact the firm for, among other things, a "no-cost informational interview," and (2) whether the circular might permissibly be expanded so as to quote prices for specific services, such as "contract analysis for $250.00."
Advertising is generally permitted, within limits, under MRPC 7.1. Materials which are false, fraudulent, misleading or deceptive are out-of-bounds under that rule. Direct contact with prospective clients is further governed by MRPC 7.3(a) which states:
"(a) A lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. The term "solicit" includes contact in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful, nor does the term "solicit" include "sending truthful and nondeceptive letters to potential clients known to face particular legal problems" as elucidated in Shapero v. Kentucky Bar Ass'n, 486 US 466; 108 SCt 1916; 100 L Ed 2d 475 (1988)."
After Shapero and its explicit inclusion in the body of MRPC 7.3(a), it is clear that personalized letters or, as here, impersonal circulars, targeted to potential clients with an identified need for particular legal services, which invite the recipient to respond to the lawyer, fall within the scope of communications which are constitutionally protected and are ethically permissible as commercial speech. RI-169.
The contents of the circular must conform to the requirements of MRPC 7.1, even though the targeted nature of the solicitation passes muster under MRPC 7.3. Here, the communication states that the lawyer's firm is dedicated to lofty principles, including providing "affordable" services, and it invites prospective clients to respond for additional information, a price quote or a "no-cost informational interview." So long as informational interviews (which term implies a face-to-face or telephone conversation with a knowledgeable firm representative in which all aspects of any prospective engagement are fairly, frankly and truthfully discussed) are readily available and are free, we see nothing in the circular's invitation that is proscribed by MRPC 7.1.
The circular's description of the firm's ideals as including providing "affordable" services along with services described as highly professional and creative, is a somewhat closer question, although the Committee believes it to be permissible under the facts presented here. Included as it is in the firm's mission statement, the term "affordable" is unlikely to be interpreted by members of the targeted group as a specific representation or warranty that the firm's fees are within the budget of any prospective client who may respond to the circular. Where, as is almost certainly true here, the lawyer has not regularly represented persons who can be expected to receive and respond to the circular, the lawyer's eventual compliance with the fee arrangements requirement of MRPC 1.5(b) should serve to prevent misunderstandings about the affordability of fees in any resulting engagement--misunderstandings which might otherwise arguably have been created by the language of the circular alone. The "affordable" appellation, in a clearly promotional piece, is not sufficiently specific to be misleading.
The second question posed by the lawyer is whether the circular may permissibly include a quotation of the firm's actual fees for specific services that are listed in the circular, such as "contract analysis for $250.00." As long as the quoted fees are truthful and the firm is prepared to complete listed projects for the amounts stated, including price information in the circular would neither render it misleading or deceptive under MRPC 7.1, nor transform it into a "solicitation" that is proscribed by MRPC 7.3. Indeed, such price information would seem to add to the informational value of the circular and not detract from it. We caution, however, that such publicly advertised fee schedules may be difficult, cumbersome or costly to change if the firm elects to raise its rates in the future. See CI-814.