CI-646

August 3, 1981

SYLLABUS

The Michigan Code of professional Responsibility does not prohibit a unified firm letterhead to include the names of lawyers who are duly licensed to practice law in the state of Michigan, providing said letterhead clearly sets out the definitive jurisdictional limitations of the practicing rights of each member of the law firm. It is likewise legally and ethically appropriate for a none in-state registered, authorized out of state law firm to practice law within the geographical limitations of Michigan, provided that said law firm designation likewise definitively list the geographical practicing limitation of the registered law firm.

It is not ethically improper for a lawyer to send by direct mail advertisement information concerning his or her practice providing same is not false, fraudulent, misleading or deceptive. If the information is of a generalized nature and is not directed to, or intended for potential clients with an identified present need for legal services.

References: DR 2-102(D); C-218; Administrative Order 1978-4.

TEXT

The flowing inquire has been made:

1. Is it ethically appropriate to include in a unified firm letterhead the names of lawyers who are duly licensed to practice law in the state of Michigan with lawyers and a law firm who are not authorized to practice law in Michigan?
2. Is it ethically appropriate to utilize and register a "fictitious" law firm name namely: the Ohio law firm listing designated which is not authorized to practice law in Michigan for purposes of telephone listings and pleadings?
3. Is it ethically appropriate to disseminate advertisement mailings of offered legal services to an identifiable class of potential legal clients, namely: certain designated labor unions, infra?

You are a lawyer and a member of the Michigan Bar for several years although an inactive member during many of your earlier practice years. You are currently the president of an Ohio legal corporation specializing in labor law. The Ohio Law Corporation has specialized in labor related matter for twenty-five (25) years. You are interested in establishing another legal office designated as the Ohio Law Corporation to be located in Michigan to facilitate and expand the representation of certain labor unions geographically located in a certain area. It is your intention, if ethically appropriate, to staff the Michigan office with a full time practitioner who is a member of the Michigan Bar and if appropriate, the Michigan office with practitioners who are licensed to practice law in the state of Michigan.

1. Michigan, like almost all of the other states, has adopted the ABA recommended Code of Professional responsibility that replaced the former Canons of ethics. In part, DR 2-102(D) states:

"A partnership shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumeration of the members and associates of the firm on its letterhead and in other permissible listings make clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all listed jurisdiction; however, the same firm name may be used in each jurisdiction."

Since the adoption by Michigan of the above referenced Disciplinary Rule, there has not been a definitive opinion issued by this Committee. However, the ABA Committee on Ethics and Professional Responsibility issued Informal Opinion 1355 which noted that the ABA Code of professional Responsibility "does not prohibit an arrangement for association between lawyers from different states so long as the limitations of each lawyer with respect to practice in each state are indicated clearly to all clients and to the public."

The ABA Code of Professional Responsibility DR 2-2102(B) is similar in language to that of its Michigan counterpart. Given the language of Michigan's appropriate Disciplinary Rule, supra, and given the ABA ethical interpretation of such similar language, a unified firm letterhead which includes a listing of lawyers who are duly licensed to practice in Michigan is ethically permissible to draft and use, if and only if the firm's letterhead and other notifying documents set out the definitive jurisdiction limitations of each of the members of the firm.

2. Pursuant to the language of DR 2-103(D) it would be ethically appropriate to register and list in telephone directories and or pleadings the Ohio law firm name designation in the state of Michigan and more precisely in the geographical area you desire. However, all public listings including telephone publication listings must indicate those members of the firm, and the firm members names who are not admitted to practice in the jurisdiction where the office is located. It is obvious that the expressed required limitations for practicing designation privileges is to avoid all appearances of misleading clients and the general public. Any and all appearances of impropriety should and must be steadfastly avoided.

3. The Committee addressed the issue involving the advertising of legal services by various methods including direct mail. Since the Michigan Supreme Court adopted Administrative Order 1978-4, suspending most of the Disciplinary Rules on lawyer advertising, this Committee has ruled on a number of occasions that a lawyer may advertise the availability of legal services by any means to the extent that the publicized information is truthful. Administrative Order 1978-4 provides in part:

"A lawyer may on behalf of himself or herself, partner, or associate, or any other lawyer affiliated with him or her or the 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 (1) year."

In C-218, this Committee opined that advertised mailings must be generalized and "not directed to, or be intended for, potential clients with an identified present need for legal services." Continuing further the formal opinion stated "[T] be permissible, communications must be general in nature, making known the services from the attorney-sender . . . including fees, costs, office hours, and specialization," leaving the recipient wholly free to respond or not according to his or her own judgment."

The specific request, namely, the sending of advertisement materials to an identified group of potential and or existing client base was specifically addressed in C-218 that held that it was unethical to direct such mailings to "a targeted group of potential clients with an identified need for particular legal services." The rationale for precluding intermediaries namely labor union officials to make recommendations and or solicit potential clients on behalf of a lawyer or law firm is to avoid undue influences and or misstatements as to law or fact in attempting to persuade a potential client to employ a specific attorney who has sent such advertisements of the attorney's background and self stated capabilities directly to said intermediaries. These stated factors distinguish this conduct from direct mail advertising sent by attorneys that simply provides people with access to information and leaves the recipient free to act on it or not. In order to remove the limitations inherent in the specific nature and kind of your intended direct advertising formulae as your inquiry denotes; it is preferable to follow your second announced option, namely have the unions themselves advise their affiliated members of the legal services that your firm may provide. However, the spirit and letter of Administrative Order 1978-4 must be followed, especially as it relates to language content of the advertising materials including the geographical practicing limitations of each member of the legal firm.

Superceding Opinion

This letter is written to supplement that Opinion and to the extent this letter is in conflict with the conclusions reached, this supplemental Opinion should be viewed as superceding the Opinion dated August 3, 1981.

This Committee, on a number of occasions, has consistently maintained that it is unethical for lawyers to utilize a fictitious or assumed trade name without identifying all of the lawyers associated with the firm. This conclusion is based upon the current advertising rule in Michigan that states that a lawyer or lawyers may use any form of advertising so long as it is not false, fraudulent, misleading or deceptive. Michigan Supreme Court Administrative Order 1978-4, as extended). It is the Committee's position that the use of a trade name is misleading if it does not identify all persons associated with the use of the name. Obviously, this would require compliance with Michigan law governing the use of trade names.

The jurisdiction of the Committee is limited to expressing its written opinion on ethical questions concerning the Michigan Code of Professional Responsibility and the Michigan Code of Judicial Conduct. The Committee has no authority to address the question of qualifying the assumed name in accordance with applicable Michigan law.