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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

Comment - Rule 7.3

[1] There is a potential for abuse inherent in direct contact by a lawyer with a prospective client known to need legal services. These forms of contact between a lawyer and a prospective client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter. The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult to evaluate fully all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer's presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and overreaching.

[2] However, the U.S. Supreme Court has modified the traditional ban on written solicitation. Shapero v Kentucky Bar Ass'n, 486 US 466; 108 SCt 1916; 100 LEd2d 475 (1988). Paragraph (a) of this rule is therefore modified to the extent required by the Shapero decision.

[3] The potential for abuse inherent in direct solicitation of prospective clients justifies its partial prohibition, particularly since lawyer advertising and the communication permitted under these rules are alternative means of communicating necessary information to those who may be in need of legal services.

[4] Advertising and permissible communication make it possible for a prospective client to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting the prospective client to impermissible persuasion that may overwhelm the client's judgment.

[5] The use of general advertising and communications permitted under Shapero to transmit information from lawyer to prospective client, rather than impermissible direct contact, will help to assure that the information flows cleanly as well as freely. Advertising is out in public view, thus subject to scrutiny by those who know the lawyer. The contents of advertisements and communications permitted under Rule 7.2 are permanently recorded so that they cannot be disputed and may be shared with others who know the lawyer. This potential for informal review is itself likely to help guard against statements and claims that might constitute false or misleading communications, in violation of Rule 7.1. The contents of some impermissible direct conversations between a lawyer and a prospective client can be disputed and are not subject to third-party scrutiny. Consequently they are much more likely to approach (and occasionally cross) the dividing line between accurate representations and those that are false and misleading.

[6] There is far less likelihood that a lawyer would engage in abusive practices against an individual with whom the lawyer has a prior family or professional relationship or where the lawyer is motivated by considerations other than the lawyer's pecuniary gain. Consequently, the general prohibition in Rule 7.3(a) is not applicable in those situations.

[7] This rule is not intended to prohibit a lawyer from contacting representatives of organizations or groups that may be interested in establishing a group or prepaid legal plan for its members, insureds, beneficiaries, or other third parties for the purpose of informing such entities of the availability of, and detail concerning, the plan or arrangement that the lawyer or the lawyer's firm is willing to offer. This form of communication is not directed to a specific prospective client known to need legal services related to a particular matter. Rather, it is usually addressed to an individual acting in a fiduciary capacity seeking a supplier of legal services for others who may, if they choose, become prospective clients of the lawyer. Under these circumstances, the activity which the lawyer undertakes in communicating with such representatives and the type of information transmitted to the individual are functionally similar to and serve the same purpose as advertising permitted under these rules.

[8] The 1989 amendment to MRPC 6.3 [effective January 1, 1990] and the corresponding amendment to 7.2(c) [effective January 1, 1990] were made in response to a proposal by the State Bar of Michigan. As indicated in the revised commentary for MRPC 6.3, the changes are intended to facilitate the establishment of a single, central repository of information concerning programs of the sort described in the rule, and of the terms and conditions under which they operate. With such a repository, it will be possible for the State Bar of Michigan annually to prepare and make publicly available a directory of such organizations in Michigan.

[9] The 1989 amendment to MRPC 7.3 [effective January 1, 1990], a corresponding change in MRPC 7.2, and the accompanying changes in the commentary are in response to the U.S. Supreme Court's decision in Shapero v Kentucky Bar Ass'n, 486 US 466; 108 SCt 1916; 100 LEd2d 475 (1988).