C-236

November, 1985

SYLLABUS

Neither DR 2-103 nor DR 2-104 will be construed to prohibit truthful and non-deceptive general advertisements or advertisements identifying specific potential legal problems. In-person solicitation shall continue to be governed by these rules.

Advertising for clients in the print media, by mass mailings, or on radio or television is permitted, but mailings of advertisements to a limited class of potential clients with an identified specific legal need is not.

References: MCPR DR 2-103(A), DR 2-104(A); Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 US 626 (1985). C-218 is superseded to the extent inconsistent.

TEXT

This opinion results not from a specific inquiry relating to a specific fact situation, but from a request from the Board of Commissioners of the State Bar of Michigan seeking an evaluation of the effect of a recent decision of the US Supreme Court on two disciplinary rules. The committee was asked to assess the impact of Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 US 626 (1985), upon MCPR DR 2-103(A) and DR 2-104(A) of the Michigan Code of Professional Responsibility. Those rules are as follows:

"DR 2-103 Recommendation of Professional Employment.

"(A) A lawyer shall not recommend employment, as a private practitioner, of himself, his partner, or associate to a non lawyer who has not sought his advice regarding employment of a lawyer."

"DR 2-104 Suggestion of Need of Legal Service.

"(A) A lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice, except that:

"(1) A lawyer may accept employment by a close friend, relative, former client (if the advice is germane to the former employment), or one whom the lawyer reasonably believes to be a client;

"(2) A lawyer may accept employment that results from his participation in activities designed to educate laymen to recognize legal problems, to make intelligent selection of counsel, or to utilize available legal services if such activities are conducted or sponsored by a qualified legal assistance organization;

"(3) a lawyer who is recommended, furnished, or paid by a qualified legal assistance organization enumerated in DR 2-103(D)(1) through (4) may represent a member or beneficiary thereof, to the extent and under the conditions prescribed therein;

"(4) without affecting his right to accept employment, a lawyer may speak publicly or write for publication on legal topics so long as he does not emphasize his own professional experience or reputation and does not undertake to give individual advice; and

"(5) if success in asserting rights or defenses of his client in litigation in the nature of a class action is dependent upon the joinder of others, a lawyer may accept, but shall not seek, employment from those contacted for the purpose of obtaining their joinder."

These rules prohibiting self-recommendation and solicitation and prohibiting acceptance of employment based upon unsolicited advice to retain counsel (with enumerated exceptions) are the same provisions the court in Zauderer found overly broad if construed to prohibit printed advertisements containing truthful and non-deceptive information and advice regarding the legal rights of potential clients.

While accepting the proposition that in-person solicitation may be justifiably banned as a prophylactic measure because the practice, by its nature closed to public scrutiny, is "rife with possibilities of overreaching, invasion of privacy, the exercise of undue influence, and outright fraud," such justifications were found inapplicable to printed advertising. Printed advertising, as a form of "commercial speech," is entitled to First Amendment protection, and may be prohibited only if false, misleading or deceptive, or may be restricted if the restriction serves a substantial governmental interest. Assuming that the advertisement is truthful and neither misleading nor deceptive, a ban on printed advertisement does not serve a substantial governmental interest.

While the court's opinion was limited to the facts before it, with some general comments regarding "printed advertising" the rationale of the decision is equally applicable to all media advertising, whether in trade journals, newspapers, radio, television or direct mailing. As distinct from in person

solicitation, such advertising is open to public scrutiny, lacks the coercive force of "in-person solicitation" and is "not likely to involve pressure" for and immediate response.

Nothing in the court's opinion suggests that rules, limited to prohibiting in-person solicitation, constitute an impermissible restraint. Unless and until successfully challenged or modified by appropriate action, MCPR DR 2-103(A) and DR 2-104(A) shall continue to be enforced with regard to personal solicitation, but should not be construed so as to prevent advertisements which are truthful and non-deceptive.

This opinion has the effect of modifying C-218, released in August, 1979. That opinion, which answered four specific requests based upon MCPR DR 2-103 and DR 2-104, is modified in the following particulars.

In C-218, this committee approved mass mailing advertisements so long as the mailing do not (a) suggest employment of the lawyer, (b) was sent to the general population and not a specific segment thereof with an identified need, and (c) did not unduly prompt a response by identifying a service generally needed by the public. Based upon Zauderer, it must be concluded that two of these findings must be modified. A mailing, or other advertisement, cannot be banned simply because it suggests employment of a specific lawyer, even when that suggestion is combined with legal advice. In fact, that is the specific situation presented to the court in Zauderer.

However, Zauderer did not deal directly with the thorny question of whether advertisements designed to reach a specific segment of the public may be prohibited. There the advertisement was "open to public scrutiny" in the sense that it was published in a general circulation newspaper. See e.g., Ohralik v. Ohio State Bar Ass'n, 436 US 477, 466 (1978). It may be debated whether private mailing to a select group are or are not "open to public scrutiny." It is clear that the mere fact the advertisement appeals to persons with a specific need does not justify a ban on the advertisement, but Zauderer suggests, and C-218 opines, that a ban on such limited mailings is justified.

The Committee notes that in lifting the ban on claim-specific advertisements, so long as they are truthful and non-deceptive, a much greater need exists to subject the nature of the advertisement to public scrutiny, and that solicitation directed to a specific class or potential clients, to the exclusion of the public at large, frustrates the effectiveness of the only potential check on the advertisement's truthfulness.

We therefore modify C-218 so as to permit mailings which suggest employment of the lawyer, even where the mailed advertisement identifies a service either generally needed or specifically required, but reaffirm the ban on mailings to or direct solicitation of a limited class of potential clients with an identified legal problem.