CI-830

October 29, 1982

SYLLABUS

A lawyer may address a general mailing to past and present clients so long as the clients do not have a specific, identifiable need for representation or services other than matters presently handled by the firm or in the past.

A law firm "newsletter" which contains out-of-state newspaper clippings and excerpts announcing plaintiff injuries and plaintiff verdicts is misleading and thus not ethically permissible without a warning that similar results may not be possible in this jurisdiction.

References: MCPR DR 2-103, DR 2-104; C-218; CI-512, CI-744, CI-823; Supreme Court Admin Order 1978-4.

TEXT

Your inquiry involves the propriety of direct mailing of a "Newsletter" to old and present clients, a sample copy of which is hereto attached.

Michigan Supreme Court Administrative 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."

This provision continues to remain in effect by subsequent Administrative Orders.

CI-823 allowed an attorney to send a letter to employers stating that the attorney is available to represent employers in MESC 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.

CI-744 allowed a law firm to address 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.

C-218 prohibited a lawyer's circular which was mailed to recipients that was seen to unduly prompt a response from recipients.

CI-512 concluded that a mass mail circular to the general public within a given geographical area was permissible provided no attempt was made to single out potential clients with a present, identified need for a particular legal service.

The best textual analysis discussing direct-mail circular located from research is as follows:

"Two grounds have been asserted in support to a prohibition on direct mailings to prospective clients: the potential for undetected fraud and the protection of important privacy interests, comment, "Three Years Later: State Court Interpretations of the Attorney's right to advertise and the Public's right to Information," 45 Mo. L. Rev. 562. 574-76 (1980); see comment, "Attorney Solicitation: The scope of State regulation after Primus and Ohralik," 12 U. Mich. J.L. Ref. 144 (1978). It has been held, however, that neither interest justifies a complete ban on the use of direct mailings. The state interest in protecting consumers against fraud can be advanced by less restrictive measures, such as the requirement in paragraph (b) that a copy of the letter be retained. E.g., Koffler v. Joint Bar Ass'n. 51 N.Y. 2d 140, 412 N.E.2d 927, 432 N.Y.S.2d 872; see Kentucky Bar Ass'n v. Stuart, 568 S.W.2d 933 (Ky. 1978). The Supreme Court has generally rejected the contention that communication by mail can be prohibited to protect the privacy of recipients even if the content "may inflame their sensibilities." Consolidated Edison Cov. Public Serv. Comm'n. 447 U.S. at __________, 100 S. Ct. at 2335.

"The recipient may avoid such invasions simply by transferring the letter "from envelope to wastebasket." Id. at 2336. Accord, Koffler v. Joint Bar Ass'n 51 N.Y.2d at __________, 412 N.E.2d at 927, 432 N.Y.S.2d 872. The privacy interests of recipients offended by such mail can be protected by a requirement, such as is stated in Rule 7.3(b), that materials not be sent to recipients who object. Accord, Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. at _____, 100 S. Ct. at 2336 n.11 (1980); Koffler v. Joint Bar Ass'n, 51 N.Y.2d 140, N.E.2d 927, 432 N.Y.S.2d 872; see Rowan v. United State Post Office Dep't, 397 U.S. 728 (1970).

"It has also been stated that mailings are "solicitation," not "advertising," and, thus not protected by the First Amendment. See comment, "Three years later," supra, at 568-71. However, all advertising involves an element of solicitation, i.e., an explicit or implicit invitation to deal. The "solicitation" that the Supreme Court held to be appropriately prohibited in Ohralik v. Ohio State Bar, 436 U.S. 447 (1978), involved both the invitation to deal and in-person delivery of that invitation. The Ohralik opinion emphasized the substantial danger of undue pressure, overreaching and duress inherent in in-person solicitations. Ohralik notes that in such circumstances the individual may often feel compelled to make an immediate decision without adequate opportunity for reflection. Mailings do not present those dangers. Koffler v. Joint Bar Ass'n. 51 N.Y.2d at _____, 412 N.E.2d at 927, 432 N.Y.S.2d at 872; see In re Primus, 436 U.S. 417 (1978) (solicitation by mail); Kentucky Bar Ass'n v. Stuart, 579 S.W.2d 933 (Ky. 1978); Comment, "Three Years later: State Court Interpretations of the Attorneys right to advertise and the Public's right to Information." supra.

"The absence of personal contact in In re Primus appears to have been an important factor in the Court's holding that, under the facts, solicitation rules could not be constitutionally applied. 436 U.S. at 435-36. Thus, the constitutionally permissible scope of regulation applied to mailings cannot turn on labels such as "advertising" or "solicitation." Accordingly this Rule regulates generally on the same basis as other methods of communication. In-person contacts for the purpose of soliciting employment are governed by the more restrictive provisions of Rule 7.3. With regard to communications with potential class members in class action litigation, see comment, "Restrictions on Communication by Class Action Parties and Attorneys," 1980 Duke L.J. 360." ABA Model Rules of Professional Conduct, May 30, 1981, p 193.

The ABA Model Rules of Professional Conduct are merely proposed rules of the ABA and have not been adopted by the Michigan Supreme Court. Nonetheless, other citations contained therein should provide guidance.

Applying the above principles to this inquiry, several axioms do appear.

First, there is nothing per se wrong with mailing the circular to past and present clients so long as they "are not circulated to persons having [an] already identified need for specific services." CI-823.

Next, all excerpts contained in the proposal are matters involving various personal injury, victories by plaintiff and several excerpts are out-of-state matters. There is no basis to expect a Michigan tribunal to permit suit or recovery in a lump-sum amount based upon cases in foreign jurisdictions. Without a bold letter warning printed somewhere on the newsletter, a recipient of the circular in its present form very clearly could or would be misled into believing that recovery in Michigan would be in similar ranges. That kind of dissemination is misleading and cannot be countenanced without clear, unambiguous warnings, that the same result might not be achieved in Michigan. Supreme Court Admin Order 1978-4.

Some of the examples contained in the proposal are goundbreaking and may be based on an evolution of laws that is not present in Michigan. Such a proposed newsletter fails to pass ethical muster without clear and unambiguous warnings that such results may or may not be achieved in Michigan where the identical issue is litigated.