Can a lawyer send a personalized direct-mail letter to newcomers in an area describing the firm's services and suggesting they may need legal help?

Plain-English summary

A lawyer proposed to direct-mail a personally addressed letter to newcomers in a geographic area, suggesting legal services they might need after moving, describing the firm's services and the lawyer's qualifications, promising prompt responses, and inviting recipients to call for an appointment. The letter told recipients that moving was a good time to reassess their legal affairs and that they "should" update their will and patient-advocate designation to name people residing closer to the new home.

The opinion concluded that advertising is generally permitted under MRPC 7.1 and expressly permitted under MRPC 7.2(a), and that under MRPC 7.3(a) targeted truthful letters are not prohibited solicitation. Relying on Shapero v Kentucky Bar Ass'n and Bates v State Bar of Arizona, the opinion concluded that personalized letters targeted to potential clients with an identified need for particular legal services, inviting a response, are constitutionally protected commercial speech, and the state may not ban a letter merely because it is mailed only to those it would most interest.

The opinion held that the letter's contents still had to conform to MRPC 7.1. It identified a problem: the letter's repeated use of "should" in saying recipients should modify their will and patient-advocate forms was potentially misleading, because a reader might think those documents become invalid or unenforceable without the suggested changes, which are not legally required. Because recipients might mistake practical advice for a statement of legal requirements and be misled into thinking the lawyer's services were needed, the opinion concluded the letter should be redrafted. The opinion noted the Committee made no finding about the lawyer's qualifications or the truth of the letter's statements, and stated that the earlier opinions CI-446, CI-896, and C-221, all predating Shapero, are superseded.

Currency note

This opinion was issued in 1993, before later amendments to the Michigan Rules of Professional Conduct. The advertising and solicitation rules (MRPC 7.1, 7.2, 7.3) have since been amended, and subsequent rule changes or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer send targeted direct mail to people likely to need legal services?

A: Yes. The opinion concluded, relying on Shapero and Bates, that personalized letters targeted to potential clients with an identified need are constitutionally protected and permitted under MRPC 7.2(a) and 7.3(a).

Q: What made this particular letter problematic?

A: The opinion concluded the letter's use of "should" implied that updating a will or patient-advocate form was legally required, which could mislead recipients, so the letter had to be redrafted to conform to MRPC 7.1.

Q: Does the committee vouch for the lawyer's qualifications or the letter's claims?

A: No. The opinion stated the Committee made no determination about the lawyer's qualifications or the truthfulness of the letter's statements; the contents must conform to MRPC 7.1 to be ethical.

Background and rules framework

The opinion applied Michigan's advertising and solicitation rules. MRPC 7.1 (Model Rule 7.1) bars false, fraudulent, misleading, or deceptive communications, including omitting facts needed to keep a statement from being materially misleading. MRPC 7.2(a) (Model Rule 7.2) expressly permits advertising. MRPC 7.3(a) (Model Rule 7.3) governs direct solicitation but excludes truthful, nondeceptive targeted letters of the kind addressed in Shapero. The opinion relied on Shapero v Kentucky Bar Ass'n and Bates v State Bar of Arizona for the constitutional protection of truthful lawyer advertising and targeted mail.

Citations and references

Rules of Professional Conduct:

• MR 7.1 / MRPC 7.1 (truthful communications)
• MR 7.2 / MRPC 7.2(a) (advertising permitted)
• MR 7.3 / MRPC 7.3(a) (direct solicitation; targeted-letter exclusion)

Cases:

• Bates v. State Bar of Arizona, 433 US 350 (1977), lawyer advertising as protected commercial speech
• Shapero v. Kentucky Bar Ass'n, 486 US 466 (1988), targeted truthful direct-mail letters protected

Other opinions cited:

• Michigan CI-446, CI-896, and C-221 (all predating Shapero), superseded by this opinion

See also

• Mich Ethics Op. RI-167: referrals and advertising through an inventor-protection group
• Mich Ethics Op. RI-147: chamber of commerce recommending a lawyer and member discounts
• ABA Formal Op. 501: solicitation

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1039&Type=6

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

RI-169

August 18, 1993

SYLLABUS

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 lawyer's firm.

References: MRPC 7.1, 7.2(a), 7.3(a); Bates v. State Bar of Arizona, 433 US 350 (1977); Shapero v. Kentucky Bar Ass'n, 486 US 466 (1988). CI-446, CI-896, and C-221 are superseded.

TEXT

A lawyer proposes to direct mail a letter personally addressed to "newcomers" in a particular geographic area, in which the lawyer suggests several legal services which may be needed by persons moving into a new home. The letter states in part:

"Moving into a new home is an ideal time to reassess your legal situation and to make sure your legal affairs are well organized. Changing your residence may require modifications in your will (i.e., a personal representative, one who resides closer to [the local area], should be nominated to avoid undue hardship on the current personal representative), or modifications in your patient advocate designation (i.e., a patient advocate who resides in the [local area] should be nominated to inform local medical personnel of your wishes regarding treatment should you become incapacitated, and copies of the patient advocate form should be filed with your local physician.) Not to mention, you may need legal advise [sic] in the future and not know where to turn for professional, affordable, legal counsel."

The letter sets forth the general services which the lawyer offers, states the lawyer's qualifications by mentioning the lawyer's commitment and personal attributes, promises a prompt response to any questions and invites the prospective client who is interested to "call to setup an appointment." The letter also encloses a brochure which was not submitted for review.

Advertising by lawyers is generally permitted under MRPC 7.1 and is expressly permitted under MRPC 7.2(a). MRPC 7.1 states:

"A lawyer may, on the lawyer's own behalf, on behalf of a partner or associate, or on behalf of any other lawyer affiliated with the lawyer or the lawyer's law firm, use or participate in the use of any form of public communication that is not false, fraudulent, misleading, or deceptive. A communication shall not:

"(a) contain a material misrepresentation of fact or law, or omit a fact necessary to make the statement considered as a whole not materially misleading;

"(b) be likely to create an unjustified expectation about results the lawyer can achieve, or state or imply that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or

"(c) compare the lawyers' services with other lawyers' services, unless the comparison can be factually substantiated."

Direct contact between a lawyer and a prospective client is further governed by MRPC 7.3(a) which states:

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

In Shapero, the court considered a letter from a lawyer personally addressed to potential clients against whom foreclosure suits had been filed, in which the lawyer generally informed the recipients of rights they may have and invited the recipients to call the lawyer for free advice. A majority of the Court determined that the contents of the letter were constitutionally protected commercial speech as defined in Bates v. State Bar of Arizona, 433 US 350; 97 S Ct 2691; 53 L Ed 2d 810 (1977). The Court further concluded that "the state may not constitutionally ban a particular letter on the theory that to mail it only to those whom it would most interest is somehow inherently objectionable." 486 US at 473-74.

Thus, under Shapero, personalized letters targeted to potential clients with an identified need for particular legal services which invite the recipient to respond to the lawyer, such as the letter under consideration here, fall within the scope of constitutionally protected commercial speech.

The contents of the letter must conform to MRPC 7.1. In this inquiry, the letter under consideration suggests two legal matters which the recipient should consider when changing residences and as such does provide valuable information which is useful to potential clients. However, the letter also states that the recipient "should" modify his or her will to nominate a personal representative who resides closer to the recipient's new home and "should" modify the recipient's patient advocate form to also nominate a patient advocate who resides in the local area. The use of the term "should" in these instances is potentially misleading insofar as the recipient may be left with the impression that his or her will or patient advocate form are rendered unenforceable or otherwise invalid by a failure to make the suggested changes. The suggested changes are not legally required in either case. While the suggestions of the lawyer may be sound practical advice, the recipient of the letter may mistake the practical nature of the advice for a statement of the legal requirements for valid wills and patient advocate forms and thus be mislead into believing that the lawyer's services are needed. For these reasons the letter should be redrafted.

The Committee is not empowered to perform investigation or other fact-finding, but considers the facts as provided. Nothing in this opinion should be construed as indicating that the Committee has determined the qualifications of the lawyer or the truthfulness of the statements in the proposed letter. We simply note that the contents must conform to MRPC 7.1 in order to be ethical.

Ethics opinions CI-446, CI-896, and C-221, all of which predate Shapero, are superseded.