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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Michigan Legal Ethics

VII. INFORMATION ABOUT LEGAL SERVICES

7.1   Rule 7.1 Communications Concerning a Lawyer's Services

7.1:100   Comparative Analysis of MI Rule

¥ Primary Michigan References: MI Rule 7.1
¥ Background References: ABA Model Rule 7.1, Other Jurisdictions
¥ Commentary:

7.1:101      Model Rule Comparison

Michigan adopted MR 7.1 exactly.

7.1:102      Model Code Comparison

[The discussion of this topic has not yet been written.]

7.1:200   Lawyer Advertising--In General

¥ Primary Michigan References: MI Rule 7.1
¥ Background References: ABA Model Rule 7.2, Other Jurisdictions
¥ Commentary:
¥ MI Commentary: Dubin and Schwartz MRPC 7.1

7.1:210      Prior Law and the Commercial Speech Doctrine

This rule governs all communications about a lawyerÕs services, including advertising permitted by Rule 7.2. In general, a lawyer may make known his or her services or qualifications so long as the communication is not misleading or likely to create unjustified expectation about results the lawyer can achieve and does not compare the lawyerÕs services with other lawyerÕs services unless the comparison can be factually substantiated. For example, a law firm sponsoring a seminar with a local hospital may set up a booth outside the seminar room to market the law firm as long as the information communicated about the firm does not violate ethics rules, seminar attendees can stop at the booth or walk away, and attendees who wish to retain the firmÕs services are advised to contact the law firm office to set up an appointment. Informal Opinion RI-99. A lawyer may send a descriptive circular by direct mail to private-sector employers in Michigan containing a description of the lawyerÕs dedication to providing affordable services, an invitation to call for a no-cost informational interview and a statement of the fees the lawyer actually charges for enumerated services, RI-244, and a lawyer may send a truthful and non-deceptive targeted letter to a potential client known to face a particular legal problem so long as the potential client has not made known to the lawyer a desire not to be solicited. RI-74; Shapero v Kentucky Bar Association, 486 US 466 (1988).

7.1:220      False and Misleading Communications

The State Bar of Michigan has held that a lawyer may not ethically participate in a lawyer referral service which falsely implies that participating lawyers are qualified or are associated with each other in the practice of law. Formal Opinion R-8. It has also opined that it is unethical for a lawyer to participate in an illegal services marketing scheme where an advertisement pursuant to the marketing scheme misleads the viewers/listener into believing that there is one identifiable entity that is responsible for the legal services being advertised when that is not the fact or that some appropriate entity has determined that participating lawyers have particular expertise in an area of law when no such evaluation of the lawyerÕs credentials has been made. Formal Opinion R-18. It is not permissible to use the term Òof counselÓ to describe the relationship between a lawyer and a law firm that involves mere office sharing or an occasional consulting or forwarding of legal business. To use the term Òof counselÓ the relationship must be close, regular and personal between the lawyer and the law firm. Informal Opinion RI-102.

7.1:230      Creating Unjustifiable Expectations

The prohibition in Paragraph (b) of statements that may create an unjustified expectation would ordinarily preclude advertisements about results obtained on behalf of a client, such as the amount of a damage award or the lawyerÕs record in obtaining favorable verdicts, and would ordinarily preclude advertisements containing client endorsements because such information may create the unjustified expectation that similar results can be obtained for others without reference to the specific factual and legal circumstances. Comment to Rule 7.1. The State Bar has opined that it is acceptable for a lawyer to list on letterhead and business cards the names of nonlawyer employees as long as the job titles clearly indicate that the nonlawyers are not licensed to practiced law. Informal Opinion RI-34. The State Bar has also held, consistent with the Supreme Court decision of Peel v Illinois Attorney Registration & Disciplinary CommÕn, 496 US 91 (1990), that a lawyer may advertise the lawyerÕs ÒcertificationÓ as a specialist by the American Bankruptcy Board of Certification because, among other things, such certification is not likely to create an unjustified expectation about the results the lawyer can achieve. RI-142.

7.1:240      Comparison with Other Lawyers

There do not appear to be any Michigan cases or State Bar of Michigan ethics opinions interpreting this topic.

7.2   Rule 7.2 Advertising

7.2:100   Comparative Analysis of MI Rule

¥ Primary Michigan References: MI Rule 7.2
¥ Background References: ABA Model Rule 7.2, Other Jurisdictions
¥ Commentary:

7.2:101      Model Rule Comparison

Michigan has removed the type of advertising services named in the Model Rules, and has eliminated (d) of the Model rules which states that ÒAny communication made pursuant to this rule shall include the name of at least one lawyer responsible for its content.

7.2:102      Model Code Comparison

[The discussion of this topic has not yet been written.]

7.2:200   Permissible Forms of Lawyer Advertising

¥ Primary Michigan References: MI Rule 7.2(a)
¥ Background References: ABA Model Rule 7.2(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 81.201, Wolfram ¤ 14.2
¥ MI Commentary: Dubin and Schwartz MRPC 7.2

Michigan follows the generally accepted principle that lawyers should be allowed to make known their services through organized information campaigns in the form of advertising because the publicÕs need to know about legal services, particularly those persons of moderate means who have not made extensive use of legal services, can be fulfilled through advertising.

Thus, the State Bar has opined that a lawyer may offer and advertise a discount on fees for legal services to members of certain groups such as state residents age 60 or older. Informal Opinion RI- 32. A lawyer may communicate, either in a print advertisement or while speaking to an assembled group, that a portion of the lawyerÕs fee will be donated to a religious or charitable organization. RI- 163. A lawyer may allow another personal organization to recommend the lawyerÕs services under certain circumstances. RI-147. A lawyer may advertise that if a client wishes to leave a testamentary bequest to a particular organization, the lawyer will prepare the will and bequest without charge. RI-164. And a lawyer may draft a letter to be included in a packet of information distributed to newcomers in a geographical area in which the lawyer describes legal services which are rendered by the lawyerÕs firm. RI-169.

Furthermore, a lawyer may place an advertisement offering legal services under a trade name that does not include the lawyerÕs own name. RI-221. And a lawyer may post information about available legal services on the internet which may be accessed by users of the technology as long as ethics rules governing content are observed. RI-276.

However, it is clear that any advertising must comply with the ethics rules. For example, it has been held that a lawyer may not participate in a lawyer referral service program which is not registered with the State Bar, which interferes with the professional judgment of the lawyer, or which uses communications which violate ethics rules. Formal Opinion R-6. Moreover, it is not permissible to participate in a lawyer referral service which falsely implies that the participating lawyers are qualified or are associated with each other in the practice of law. R-8. The State Bar has also held that a marketing arrangement whereby participating lawyers are contractually obligated to accept cases on a contingency fee basis violates the proscription of MCR 8.121(E) against entering into a contingency fee arrangement without fully advising the client about other fee arrangements. Informal Opinion RI-17. A lawyer must be careful not to give anything of value to a person for recommending the lawyerÕs services other than paying the reasonable cost of advertising. RI-191.

7.2:300   Retaining Copy of Advertising Material

¥ Primary Michigan References: MI Rule 7.2(b)
¥ Background References: ABA Model Rule 7.2(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 81:401, Wolfram ¤ 14.2
¥ MI Commentary: Dubin and Schwartz MRPC 7.2

The rule provides that a copy or recording of an advertisement shall be kept for two years along with a record of when and where it was used. MRPC 7.2(b).

7.2:400   Paying to Have Services Recommended

¥ Primary Michigan References: MI Rule 7.2(c)
¥ Background References: ABA Model Rule 7.2(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 81.301, Wolfram ¤ 14.2
¥ MI Commentary: Dubin and Schwartz MRPC 7.2

A lawyer is allowed to pay the reasonable costs of advertising but otherwise is not permitted to pay another person for channeling professional work. However, a legal aid agency or pre-paid legal services plan may pay to advertise legal services provided under its auspices, or a lawyer may participate in a not-for-profit lawyer referral program and pay the usual fees charged by such program. See Comment to MRPC 7.2. See also Discussion under 7.2:200 above.

7.2:500   Identification of a Responsible Lawyer

¥ Primary Michigan References: MI Rule 7.2(d)
¥ Background References: ABA Model Rule 7.2(d), Other Jurisdictions
¥ Commentary: ABA/BNA ¤¤ 81.201, 81:301, Wolfram ¤ 14.2

Michigan did not adopt the provision of the Model Rules which requires that any communication made shall include the name of at least one lawyer responsible for its content. Therefore, a lawyerÕs advertising in Michigan need not identify the responsible lawyer.

7.3   Rule 7.3 Direct Contact with Prospective Client

7.3:100   Comparative Analysis of MI Rule

¥ Primary Michigan References: MI Rule 7.3
¥ Background References: ABA Model Rule 7.3, Other Jurisdictions
¥ Commentary:

7.3:101      Model Rule Comparison

Unlike the Model Rules, Michigan has taken the extra step of defining the term Òsolicit.Ó The definition falls in line with that elucidated in Shapero v Kentucky Bar AssÕn, 486 US 466 (1988). Michigan has also removed the requirement in (c) of the Model Rules that the words Òadvertising materialÓ be included on the outside of any envelope sent to a prospective client with whom the attorney has no prior relationship. Additionally, Michigan has eliminated (d).

7.3:102      Model Code Comparison

[The discussion of this topic has not yet been written.]

7.3:200   Prohibition of For-Profit In-Person Solicitation

¥ Primary Michigan References: MI Rule 7.3(a)
¥ Background References: ABA Model Rule 7.3(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 81:2001, Wolfram ¤ 14.2.5
¥ MI Commentary: Dubin and Schwartz MRPC 7.3

The state may, as a prophylactic measure, prohibit in-person solicitation of clients by lawyers for pecuniary gain where there is a risk of overreaching, undue influence or other evils. However, solicitation which is motivated by interests other than pecuniary gain such as to advance political idiology constitutes protected speech under the first amendment. Woll v Kelley, 116 Mich App 791; 323 NW2d 560 (1982). All in-person solicitation substantially motivated by pecuniary gain is prohibited. Id. The principle which voids compensation agreements for improper solicitation applies only to in-person solicitation for pecuniary gain. Keliin v Petrucelli, 198 Mich App 426; 499 NW2d 360 (1993). Using a sophisticated, independent intermediary to determine the recommendation of legal services does not violate the solicitation rule where the lawyer did not directly contact any perspective client, but his solicitation was directed to a union business agent who ostensibly represented the interest of union members with potential claims. State Bar Grievance AdmÕr v Jaques (On Remand), 407 Mich 26; 281 NW2d 469 (1979). But see RI-205 where the State Bar of Michigan opined that a lawyer may not send a letter to physicians seeking to have the physicians refer to the lawyer patients with whom the lawyer has had no prior professional relationship.

7.3:210      Solicitation by Non-Profit Public Interest Organization

A lawyer may participate in and pay the usual charges of a not-for-profit lawyer referral services or a legal service organization that recommends, furnishes or pays for legal services to its members or beneficiaries if that service or organization appropriately registers with the State Bar of Michigan and keeps its registration current. MRPC 6.3(b). However, a lawyer may not participate in a lawyer referral services that interferes with the professional judgment of the lawyer rendering the legal services or which requires the lawyer to breach the duty of maintaining client confidences. Formal Opinion R-6. Furthermore, the lawyer should have the opportunity to review and monitor the advertising and communications about the lawyerÕs services and may not participate in a service which suggests that lawyers contact clients by telephone or in person in violation of this rule. R-6.

7.3:220      Solicitation of Firm Clients by a Departing Lawyer

A lawyer who has left a law firm for other private practice may send announcements to clients of the former firm indicating the lawyerÕs new association, address and phone number. A departing lawyer, whether associate or partner, may advise a client by phone, in person or in writing that the lawyer is leaving a firm if there is no solicitation. The content of the announcement must comply with MRPC 7.1 and may not be false, fraudulent, deceptive, misleading, compare lawyersÕ services or give an unreasonable expectation of results that may be achieved. As long as the statement does not ask the client to hire, fire or make a decision regarding representation, the communication constitutes permissible advertising under MRPC 7.1. Informal Opinion RI-49.

7.3:300   Regulation of Written and Recorded Solicitation

¥ Primary Michigan References: MI Rule 7.3(b)
¥ Background References: ABA Model Rule 7.3(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 81:2001, Wolfram ¤ 14.2.5
¥ MI Commentary: Dubin and Schwartz MRPC 7.3

Pursuant to the ruling in Shapero v Kentucky Bar AssÕn, 486 US 466 (1988), a lawyer may send a truthful and nondeceptive targeted letter to a potential client known to face a particular legal problem. RI-74. Moreover, a lawyer may draft a letter to be included in a packet of information distributed to ÒnewcomersÓ in the geographical area in which the lawyer describes legal services which are rendered by the lawyerÕs firm. Bates v State Bar of Arizona, 433 US 350 (1977); Shapero v. Kentucky Bar AssÕn, supra; RI-169. However, a lawyer may not send a letter to physicians seeking to have the physicians refer patients to the lawyer if the lawyer has had no prior professional relationship with such patients. Such would be an attempt to do through an agent what the lawyer cannot do directly under MRPC 7.3. RI-205.

7.3:400   Disclaimers for Written and Recorded Solicitation

¥ Primary Michigan References: MI Rule 7.3
¥ Background References: ABA Model Rule 7.3(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 81:401, Wolfram ¤ 14.2.5

Michigan did not include subsection (c) of Rule 7.3 from the Model Rules. That subsection requires a disclaimer which includes the words Òadvertising materialÓ on the outside of the envelope and at the beginning and ending of any recorded communication. Such disclaimer would appear not to be required in Michigan.

7.3:500   Solicitation by Prepaid and Group Legal Services Plans

¥ Primary Michigan References: MI Rule 7.3
¥ Background References: ABA Model Rule 7.3(d), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 81:2501, Wolfram ¤ 16.5.5

Michigan did not include subsection (d) of the Rule 7.3 from the Model Rules. A lawyer may participate in a for-profit prepaid legal service plan, provided that the plan is not a lawyer referral plan, the plan allows the lawyer to exercise independent professional judgment on behalf of the client, to maintain client confidences and to avoid conflicts of interest, the operation of the plan does not involve improper advertising, solicitation or fee sharing and the plan is in compliance with other applicable law. RI-223. Thus a lawyer may not participate in a prepaid legal service plan where the president of the organization, who is a nonlawyer, has control over handling any disputes between the lawyer and the member who seeks a legal service. RI-7.

7.4   Rule 7.4 Communication of Fields of Practice

7.4:100   Comparative Analysis of MI Rule

¥ Primary Michigan References: MI Rule 7.4
¥ Background References: ABA Model Rule 7.4, Other Jurisdictions
¥ Commentary:

7.4:101      Model Rule Comparison

Michigan has eliminated the inapplicable second sentence stated in the Model Rules.

7.4:102      Model Code Comparison

[The discussion of this topic has not yet been written.]

7.4:200   Regulation of Claims of Certification and Specialization

¥ Primary Michigan References: MI Rule 7.4
¥ Background References: ABA Model Rule 7.4, Other Jurisdictions
¥ Commentary: ABA/BNA ¤¤ 21:4001, 81:501, Wolfram ¤ 14.2.4
¥ MI Commentary: Dubin and Schwartz MRPC 7.4

In RI-142, it was held that a lawyer could advertise the fact that he had been certified by the American Bankruptcy Board of Certification in a manner that was not false, fraudulent, misleading or deceptive.

7.5   Rule 7.5 Firm Names and Letterheads

7.5:100   Comparative Analysis of MI Rule

¥ Primary Michigan References: MI Rule 7.5
¥ Background References: ABA Model Rule 7.5, Other Jurisdictions
¥ Commentary:

7.5:101      Model Rule Comparison

Michigan adopted MR 7.5 exactly.

7.5:102      Model Code Comparison

[The discussion of this topic has not yet been written.]

7.5:200   Firm Names and Trade Names

¥ Primary Michigan References: MI Rule 7.5(a)
¥ Background References: ABA Model Rule 7.5(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 81:3001, Wolfram ¤ 14.2.4
¥ MI Commentary: Dubin and Schwartz MRPC 7.5

In RI-102, the Ethics Committee held that the designation Òof counselÓ may be used as long as the relationship is close, personal and regular with frequent and continuing contact, and not that of a partner, shareholder, associate, occasional consultant, mere office-sharer or forwarder or receiver of legal business. In RI-45, the issue was whether the name of a deceased partner could be used in the firm name if the other named partners change. It was held that the crucial question becomes whether there has been a continuing succession from the original law firm. If so, the name of a deceased lawyer may be used in the name of the successor firm. The resulting shareholders or partners must continue to retain the same rights as the original owner without change in ownership and there must be change in form only and not in substance. However, the opinion also held that a named partner who leaves the partnership and continues to share office space presents a different situation. Since a lawyer may not imply that he is a partner when in fact he is not, the letterhead using the departing partnerÕs name would be improper.

Other ethics opinions dealing with this ruling include RI-90 which addresses the issue of a retired shareholder who remains of counsel; RI-130 which holds that a lawyer may not franchise a trade name under which a number of lawyers who are not in fact in a partnership hold themselves out as practicing under one firm name; and RI-200 which holds that separate law firms cannot state that they are affiliated with each other without explaining the meaning of that term.

Lawyers are permitted to use trade names so long as the name is not misleading or deceptive. RI-173, RI-221, RI-212.

7.5:300   Law Firms with Offices in More Than One Jurisdiction

¥ Primary Michigan References: MI Rule 7.5(b)
¥ Background References: ABA Model Rule 7.5(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 81:3001, Wolfram ¤ 15.4
¥ MI Commentary: Dubin and Schwartz MRPC 7.5

There do not appear to be any Michigan cases or State Bar of Michigan ethics opinions interpreting this topic.

7.5:400   Use of the Name of a Public Official

¥ Primary Michigan References: MI Rule 7.5(c)
¥ Background References: ABA Model Rule 7.5(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 81:3001, Wolfram ¤ 14.2.4
¥ MI Commentary: Dubin and Schwartz MRPC 7.5

There do not appear to be any Michigan cases or State Bar of Michigan ethics opinions interpreting this topic.

7.5:500   Misleading Designation as Partnership, etc.

¥ Primary Michigan References: MI Rule 7.5(d)
¥ Background References: ABA Model Rule 7.5(d), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 81:3001, ALI-LGL ¤ 79, Wolfram ¤ 14.2.4
¥ MI Commentary: Dubin and Schwartz MRPC 7.5

RI-45 holds that a withdrawing partner cannot have his name used in the letterhead if he would only be sharing office space with his former firm. In RI-144, the Ethics Committee prohibited a Michigan lawyer from including the name of an unlicensed Michigan attorney in the letterhead although he was a law firm employee because lawyers may not hold themselves out as partners if they are not partners. In RI-200, the Ethics Committee concluded that lawyers from independent law firms could not use a joint letterhead to designate an affiliation because they were not in the same law firm.