RI-391

September 6, 2024

SYLLABUS

A lawyer may host parties or other social events, but when doing so must comply with rules governing lawyer advertising and solicitation. Additional requirements apply when judicial officers are invited to attend parties or other social events.

References: MRPC 7.2, 7.3, 5.3, 5.4(a), 8.4(a); RI-169, RI-215, RI-276, JI-146, JI-156.

TEXT

Parties and social events (Social Events) are common methods for lawyers and law firms to engage in marketing and establish relationships with the community. When planning a Social Event, lawyers often inquire as to their ethical obligations associated with hosting a Social Event. While lawyers must adhere to all of their ethical obligations at all times,¹ below are the rules most implicated by hosting a Social Event.

Relevant Rule Provisions

Rule 7.2 Advertising

(a) Subject to the provisions of these rules, a lawyer may advertise.

(b) A copy or recording of an advertisement or communication shall be kept for two years after its last dissemination along with a record of when and where it was used.

(c) A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may:

(i) pay the reasonable cost of advertising or communication permitted by this rule;

(ii) participate in, and pay the usual charges of, a not-for-profit lawyer referral service or other legal service organization that satisfies the requirements of Rule 6.3(b); and

(iii) pay for a law practice in accordance with Rule 1.17.

(d) For purposes of media advertising, services of a lawyer or law firm that are advertised under the heading of a phone number, web address, icon, or trade name shall identify the name and contact information of at least one lawyer responsible for the content of the advertisement. The identification shall appear on or in the advertisement itself; or, if that is not practical due to space limitations, the identification shall be prominently displayed on the home page of the law firm’s website and any other website used by the law firm for advertising purposes.

Rule 7.3 Solicitation

(a) A lawyer shall not solicit professional employment from a person 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, 468; 108 S Ct 1916; 100 L Ed 2d 475 (1988).

(b) A lawyer shall not solicit professional employment from a person by written or recorded communication or by in-person or telephone contact even when not otherwise prohibited by paragraph (a), if:

(1) the person has made known to the lawyer a desire not to be solicited by the lawyer; or

(2) the solicitation involves coercion, duress, or harassment.

Rule 8.4 Misconduct

It is professional misconduct for a lawyer to:
. . . .
(e) knowingly assist a judge or judicial officer in conduct that is a violation of the Code of Judicial Conduct or other law.

Invitations to Lawyers and Members of the Public

Lawyers generally may network among potential clients, heighten awareness of the lawyer’s or law firm’s name in the community, conduct social events, or engage in actions that may have the long-term beneficial effect of enhancing the lawyer’s or law firm’s profile and profitability. These are traditional business development tactics that are generally appropriate.

MRPC 7.2(c) prohibits a lawyer from giving “anything of value to a person for recommending the lawyer’s services.” In other words, an invitation to a Social Event or the provision of hospitality at the Social Event must not be a bargained-for exchange. 

For example, a lawyer would violate MRPC 7.2(c) if the lawyer hosted a Social Event, invited local physicians to attend, and provided them with items of value in exchange for the physicians referring clients to the lawyer.²

In addition to MRPC 7.2, a lawyer hosting a Social Event must comply with the solicitation restrictions in MRPC 7.3. Subject to listed exceptions, MRPC 7.3 prohibits solicitation of persons for pecuniary gain without a prior family or professional relationship. Therefore, for example, a lawyer should not obtain a list from a local sheriff of people arrested and invite those individuals to a Social Event at which the lawyer offers legal services to invitees. “The important considerations under MRPC 7.3 are whether the contact is initiated by the lawyer or the prospective client, whether the offer of legal services is for pecuniary gain of the lawyer, whether there has been a prior professional relationship, and whether the prospective client is not known to need legal services of the kind offered but is generally situated to find the offered legal services useful.” See RI-276. A lawyer or firm must take these considerations into account when compiling a guest list and determining what information and gifts may be provided to the invitees. Considering these two rules in tandem, a lawyer may elect to invite potential clients to a Social Event but may not solicit business from these potential clients if a goal is pecuniary gain, unless there is a prior family or professional relationship within the exceptions contained in MRPC 7.3.

It is further important to note that under MRPC 5.3, lawyers with supervisory authority must ensure their staff also do not violate the ethical rules, including the advertising and solicitation rules as stated in MRPCs 7.2 and 7.3.

This opinion should be read in conjunction with the Committee’s opinions on related subjects. For example, in RI-276 the Committee analyzed the issue of whether a lawyer may advertise using various electronic platforms, e.g., internet, email. The Committee concluded that posting information on an electronic platform that may be accessed by various users is acceptable as long as the information is truthful, consistent with MRPC 7.2. The opinion further distinguished interactive solicitations that would implicate MRPC 7.3. In RI-169 the Committee opined that a lawyer may inform “newcomers” through a directed packet of information in a geographical area about the legal services the law firm provides. The analysis in RI-169 should be used when inviting members of the public to a Social Event based upon a particularized need of potential clients in order to engage with the lawyer for future legal services. When planning Social Events, a lawyer should also consider ethics opinion RI-215, which provides that a lawyer may not use a third party to solicit business from a potential client that the lawyer could not otherwise solicit themselves under MRPC 7.3.

Invitations to Judges

Social Event invitations to, and hosting of, judges, their staff, or their family members implicate additional ethical considerations. MRPC 8.4(e) prohibits a lawyer from knowingly assisting a judge or judicial officer in conduct that violates the Michigan Code of Judicial Conduct. A judge’s ethical obligations associated with attending Social Events were covered in JI-156. Any lawyer who invites a judge to a Social Event should review JI-156 carefully to avoid assisting a judge in conduct that contravenes the judge’s ethical responsibilities. Of note, even in circumstances where a personal relationship exists, judges may accept (and, therefore, lawyers may provide) only “ordinary social hospitality.” See JI-146.³ Whether social hospitality is “ordinary” depends in large part on whether the gifts⁴ are historically reciprocal in nature. In addition, it should be noted that gifts from lawyers who are likely to appear before the judge in the future are always prohibited.

If a lawyer invites a judge to a Social Event, the lawyer should include the following information with the invitation to allow the judge to determine whether attendance comports with the judge’s ethical responsibilities:

• The host of the event.
• Identification of products, services, or other organizations sponsoring the event.
• Information regarding who is invited to the event—judges, attorneys, clients, the public, etc.
• Whether the media will be present.
• Whether pictures or videos will be taken to publicize the event.
• Whether gifts will be provided.
• Whether food and/or drinks will be provided.
• Whether funds are being solicited or another funding event will take place, e.g., silent auction, and if so, what or where the funds will be going to.

Judicial officers who are invited to Social Events should refer to Ethics Opinion JI-156.

CONCLUSION

The Michigan Rules of Professional Conduct do not prohibit Social Events hosted by a lawyer or law firm. However, lawyers and law firms must be cognizant of the requirements of MRPCs 7.2 and 7.3 when holding Social Events, including restrictions on bargained-for exchanges for referring business to the lawyer, and solicitation. Lawyers may invite judges to Social Events but must not assist a judge in violating the judge’s ethical obligations through the judge’s participation in the Social Events. 

1. A manifest purpose of holding a Social Event is socialization. Because lawyers remain bound by the Rules of Professional Conduct in Social as well as professional settings, host law firms must also ensure that its lawyers and staff refrain from disclosing protected client information to non-firm attendees, and from discussing prospective client matters before clearing conflicts. See MRPC 1.6, 1.7, 1.9, 1.18, and 5.5.

2. Non-lawyers may not be paid referral fees. If, in this example, the physician was a non-lawyer, and the lawyer paid the physician a fee in exchange for the referral, the payment from the lawyer to the physician would also violate MRPC 5.4(a).

3. While JI-146 pertains to restrictions on what gifts a judge may accept, it must be noted that lawyers, as officers of the court, have a special responsibility to protect the integrity of the judiciary.

4. The term “gift” is defined as “[a] voluntary conveyance of land, or transfer of goods, from one person to another, made gratuitously and not upon any consideration of blood or money.” Black’s Law Dictionary (11th ed). The Michigan Campaign Finance Act should also be consulted as to the definition of a “gift” when hosting a campaign event.