C-221
February, 1980
SYLLABUS
A lawyer may not contract with and pay a fee to a "Welcome Wagon" organization to distribute literature prepared by the lawyer to newcomers in the community, thereby promoting the lawyer's business.
References: MCPR DR 2-103(B), (C), (D); Supreme Court Admin Order 1978-4; State Bar Grievance Administrator v. Jaques, (on remand) 407 Mich 26 (1979).
TEXT
A lawyer asks whether it would be unethical to contract with and pay a "Welcome Wagon" organization to deliver a welcome letter and a card or pamphlet from the lawyer to newcomers in the community.
Communications from a lawyer to potential clients are governed by Michigan Supreme Court Admin Order 1978-4 and MCPR DR 2-103(B), (C), and (D). Admin Order 1978-4, adopted by the Supreme Court May 15, 1978, provides as follows:
"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."
In Admin Order 1978-4, the court specifically continued MCPR DR 2-103 in effect. The prohibitions embodied in that provision Rule must therefore be considered when a lawyer proposes to contract with an organization for advertising his or her services. MCPR DR 2-103(B) provides in part:
"A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client . . . except that he may pay the usual and reasonable fees or dues charged by any of the organizations listed in DR 2-103(D)."
MCPR DR 2-103(C) provides in part:
"A lawyer shall not request a person or organization to recommend or promote the use of his services or those of his partner or associate, or any other lawyer affiliated with him or his firm, as a private practitioner, except that . . . ."
A lawyer is permitted under MCPR DR 2-103(C)(1) to request referrals from a lawyer referral service "operated sponsored or approved by a bar association." Emphasis added. MCPR DR 2-103(C)(2) permits a lawyer to cooperate with the legal service activities of offices or organizations enumerated in MCPR DR 2-103(D)(1) through (4). The offices or organizations enumerated in MCPR DR 2-103(D)(1) through (3) are legal aid or public defender offices, military legal assistance offices and lawyer referral offices operated, sponsored or approved by a bar association. MCPR DR 2-103(D)(4) refers to "any bona fide organization that recommends, furnishes or pays for legal services to its members or beneficiaries," provided certain conditions are satisfied.
The independent private referral service suggested by the "Welcome Wagon" proposal does not qualify under any of the exceptions enumerated in MCPR DR 2-103(D).
In State Bar Grievance Administrator v. Jaques, (on remand) 407 Mich 26 (1979), the Court held that "disciplinary rules may not prohibit attorney solicitation per se." Justice Ryan's opinion noted that the respondent lawyer's solicitation was directed to a union business agent who has the "expertise to make a detached and informed evaluation of the respondent's qualifications before making any recommendation to union members." The opinion further noted that there was no claim that the union business agent was acting as the lawyer's agent. The union business agent served as a buffer between the lawyer and prospective clients, thereby eliminating the potential for overreaching and undue influence.
There is no suggestion or indication that the "Welcome Wagon" organization possess the expertise cited in Jaques which would enable it to screen the qualifications of a lawyer for whom it might distribute materials which suggest using that lawyer's services. There is a substantial possibility that the persons who receive such material from a "Welcome Wagon" might assume that the "Welcome Wagon" organization is recommending or endorsing that lawyer's abilities, when in fact the organization is most likely unqualified to do so. "Welcome Wagon" would in essence be acting as the lawyer's agent, and could not be regarded as a buffer between the lawyer and prospective clients.
The use of a paid intermediary to recommend and promote a lawyer's services to potential clients, absent the kind of safeguards provided in the ethics rules and discussed in Jaques, carries a serious risk of adverse consequences which the state has a legitimate and important interest in preventing.
Therefore, a lawyer is not permitted to pay a "Welcome Wagon" organization to promote the lawyer's business by distributing a lawyer's literature to newcomers in a community.