Can a lawyer pay a Welcome Wagon type service to deliver the lawyer's welcome letter and pamphlet to newcomers in the community to promote the lawyer's practice?
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This page answers the general question as of 1980. Ezel answers yours: whether it's allowed on your facts, under the current Michigan Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer asked whether it would be ethical to contract with and pay a Welcome Wagon organization to deliver a welcome letter and a card or pamphlet from the lawyer to newcomers in the community. The opinion analyzed the question under the communications standard of Michigan Supreme Court Administrative Order 1978-4, which permitted public communications that were not false, fraudulent, misleading, or deceptive, while keeping MCPR DR 2-103 in effect.
The opinion concluded the proposal ran afoul of MCPR DR 2-103(B), which barred a lawyer from compensating or giving anything of value to a person or organization to recommend or secure the lawyer's employment, except the usual fees of organizations listed in DR 2-103(D). The Welcome Wagon service did not qualify under any of the DR 2-103(D) exceptions (bar-operated referral services and similar bona fide organizations). The opinion distinguished State Bar Grievance Administrator v. Jaques, where solicitation through a union business agent was permitted because the agent had the expertise to make a detached, informed evaluation and served as a buffer against overreaching; Welcome Wagon had no comparable expertise to screen the lawyer's qualifications and would essentially act as the lawyer's agent. The opinion concluded that recipients might wrongly assume the organization was endorsing the lawyer, so the lawyer could not pay it to distribute the literature.
Currency note
This opinion was issued in 1980 under the former Michigan Code of Professional Responsibility (MCPR), which the Michigan Supreme Court replaced with the Michigan Rules of Professional Conduct effective October 1, 1988, and amended further thereafter. The disciplinary rule it construes (MCPR DR 2-103) is no longer in force, and lawyer-advertising restrictions have been narrowed by later constitutional decisions. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.
Common questions
Q: Can a lawyer pay a Welcome Wagon service to hand out the lawyer's brochures to newcomers?
A: The opinion concluded no, because paying a private organization that is not a qualified referral service to recommend or promote the lawyer's services violated MCPR DR 2-103(B).
Q: Why didn't the Welcome Wagon arrangement qualify under an exception?
A: The opinion concluded the service did not fall within any of the DR 2-103(D) categories, such as bar-operated referral offices or bona fide organizations furnishing legal services to members.
Q: How did this differ from the Jaques solicitation case?
A: The opinion concluded that in Jaques the union business agent had the expertise to evaluate the lawyer and acted as a buffer, whereas Welcome Wagon had no such expertise and would effectively act as the lawyer's agent.
Background and rules framework
The opinion applied Michigan Supreme Court Administrative Order 1978-4 on lawyer communications and MCPR DR 2-103 on recommending or securing employment, the predecessors of today's Michigan Rules of Professional Conduct on solicitation and giving value for recommendations (the analogues now appearing as Model Rules 7.2 and 7.3). It relied on State Bar Grievance Administrator v. Jaques.
Citations and references
Rules of Professional Conduct (as cited):
- MCPR DR 2-103(B), (C), (D) (recommending or securing employment; paid referrals)
- Michigan Supreme Court Administrative Order 1978-4 (lawyer public communications)
Cases:
- State Bar Grievance Administrator v. Jaques (on remand), 407 Mich. 26 (1979), limits on prohibiting lawyer solicitation
See also
- Mich Ethics Op. RI-325: lawyer participation in estate-planning kit ventures
- Mich Ethics Op. RI-191: door-to-door sale of will and trust forms by nonlawyers
- Mich Ethics Op. RI-135: lawyer-insurance agent selling and soliciting
Source
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
C-221
February, 1980
SYLLABUS
A lawyer may not contract with and pay a fee to a "Welcome Wagon" organization to distribute literature prepared by the lawyer to newcomers in the community, thereby promoting the lawyer's business.
References: MCPR DR 2-103(B), (C), (D); Supreme Court Admin Order 1978-4; State Bar Grievance Administrator v. Jaques, (on remand) 407 Mich 26 (1979).
TEXT
A lawyer asks whether it would be unethical to contract with and pay a "Welcome Wagon" organization to deliver a welcome letter and a card or pamphlet from the lawyer to newcomers in the community.
Communications from a lawyer to potential clients are governed by Michigan Supreme Court Admin Order 1978-4 and MCPR DR 2-103(B), (C), and (D). Admin Order 1978-4, adopted by the Supreme Court May 15, 1978, provides as follows:
"A lawyer may on behalf of himself, his partner or associate, or any other lawyer affiliated with him or his firm, use or participate in the use of any form of public communication that is not false, fraudulent, misleading, or deceptive. Except for DR 2-103 and DR 2-104, Disciplinary Rules in conflict with this Order are suspended for a period of one year."
By subsequent administrative orders, the court has continued this order in effect "until further order of the court."
In Admin Order 1978-4, the court specifically continued MCPR DR 2-103 in effect. The prohibitions embodied in that provision Rule must therefore be considered when a lawyer proposes to contract with an organization for advertising his or her services. MCPR DR 2-103(B) provides in part:
"A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client . . . except that he may pay the usual and reasonable fees or dues charged by any of the organizations listed in DR 2-103(D)."
MCPR DR 2-103(C) provides in part:
"A lawyer shall not request a person or organization to recommend or promote the use of his services or those of his partner or associate, or any other lawyer affiliated with him or his firm, as a private practitioner, except that . . . ."
A lawyer is permitted under MCPR DR 2-103(C)(1) to request referrals from a lawyer referral service "operated sponsored or approved by a bar association." Emphasis added. MCPR DR 2-103(C)(2) permits a lawyer to cooperate with the legal service activities of offices or organizations enumerated in MCPR DR 2-103(D)(1) through (4). The offices or organizations enumerated in MCPR DR 2-103(D)(1) through (3) are legal aid or public defender offices, military legal assistance offices and lawyer referral offices operated, sponsored or approved by a bar association. MCPR DR 2-103(D)(4) refers to "any bona fide organization that recommends, furnishes or pays for legal services to its members or beneficiaries," provided certain conditions are satisfied.
The independent private referral service suggested by the "Welcome Wagon" proposal does not qualify under any of the exceptions enumerated in MCPR DR 2-103(D).
In State Bar Grievance Administrator v. Jaques, (on remand) 407 Mich 26 (1979), the Court held that "disciplinary rules may not prohibit attorney solicitation per se." Justice Ryan's opinion noted that the respondent lawyer's solicitation was directed to a union business agent who has the "expertise to make a detached and informed evaluation of the respondent's qualifications before making any recommendation to union members." The opinion further noted that there was no claim that the union business agent was acting as the lawyer's agent. The union business agent served as a buffer between the lawyer and prospective clients, thereby eliminating the potential for overreaching and undue influence.
There is no suggestion or indication that the "Welcome Wagon" organization possess the expertise cited in Jaques which would enable it to screen the qualifications of a lawyer for whom it might distribute materials which suggest using that lawyer's services. There is a substantial possibility that the persons who receive such material from a "Welcome Wagon" might assume that the "Welcome Wagon" organization is recommending or endorsing that lawyer's abilities, when in fact the organization is most likely unqualified to do so. "Welcome Wagon" would in essence be acting as the lawyer's agent, and could not be regarded as a buffer between the lawyer and prospective clients.
The use of a paid intermediary to recommend and promote a lawyer's services to potential clients, absent the kind of safeguards provided in the ethics rules and discussed in Jaques, carries a serious risk of adverse consequences which the state has a legitimate and important interest in preventing.
Therefore, a lawyer is not permitted to pay a "Welcome Wagon" organization to promote the lawyer's business by distributing a lawyer's literature to newcomers in a community.
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