Supreme Court amends lawyer advertising rule

By Roberta M. Gubbins

Legal News

By tradition, lawyers did not personally contact a prospective client or advertise. It was believed that such behavior would demean the profession.

Then in 1977, the U.S. Supreme Court in Bates v State Bar of Arizona, held that lawyer advertising was a kind of commercial speech protected by the First Amendment.

Since that time rules of professional conduct have been used to attempt to regulate advertising in the legal profession.

Recently the Michigan Supreme Court by a 4-3 vote enacted amendments to Rule 7.3, Direct Contact with Prospective Clients, of the Michigan rules of Professional Conduct that will take effect September 1, 2011.

Of particular concern is the use of solicitation to get business.

The amendments specify that lawyers "shall not solicit professional employment from a prospective client that the lawyer doesn't know where the lawyer's motive is for pecuniary gain."

Solicit, under the rule, "includes contact that is directed to a specific recipient" in person, by telephone, telegraph, letter or other writing, or by other communications such as e-mail.

Advertising that is allowed must include the words "Advertising Material" on the envelope, if any, and at the top and the end of any written communication.

Those words "shall appear on the address panel of the brochure, pamphlet or postcard" whether the communication is sent by mail or by e-mail.

There is also a condition that if the material is "truthful and non-deceptive" and is to be sent "to potential clients known to face particular legal problems," the material can not be transmitted "less than 30 days after the incident that gives rise to the potential claim."

These targeted communications are protected under Shapero v Kentucky Bar Ass'n, 486 US 466 (1988).

Justices Kelly, Markman and Hathaway dissented.

Justice Kelly opposed the rule change stating it "is overbroad, ambiguous and likely to create confusion. I would adopt instead the ABA Model Rule of Professional Conduct 7.3."

Justice Markman wrote that "I am inclined to believe that it (the proposed amendment) will simply add to the clutter of court rules that have already been sufficiently cluttered over the past decade..."

He argued that the Court was placing "the small law firm at an increasing economic disadvantage to the large law firm in terms of client solicitation. I see little point to the new rule, and would not adopt it."

The amendments and new rule can be found at the Michigan Supreme Court website.

Published: Mon, Jun 27, 2011