Can a Michigan lawyer advertise and solicit clients over the Internet, including through a website and email?

Plain-English summary

The Committee was asked whether lawyer advertising on the Internet, through email or home pages, is "direct mail" permitted under MRPC 7.3 or impermissible contact akin to the in-person and telephone contact the rule restricts. The opinion sorted online communication into three forms and applied the existing advertising and solicitation rules to each.

Posted information, such as a home page or a posting in a library or chat room, is general and non-targeted, and the user initiates contact by accessing it. The Committee concluded MRPC 7.3 is not triggered; the lawyer need only comply with MRPC 7.1 on content and keep a copy under MRPC 7.2. The Committee quoted an ABA/BNA Lawyers' Manual article observing that a lawyer's website "generally would not appear to involve 'in-person' or 'live telephone contact'" because the contact is not live and is more like a client telephoning or walking into the office.

Email sent to a specific addressee or group of addressees is, by contrast, akin to sending postcards or faxes. The Committee concluded MRPC 7.3 applies to such email to the same extent it applies to postal mail, and that Shapero v. Kentucky Bar Ass'n appears to permit such communications, again subject to MRPC 7.1 content rules and the MRPC 7.2 copy-retention requirement. Finally, lawyer-initiated interactive "real time" communication, an immediate electronic conversation begun by the lawyer without invitation, would be analogous to direct solicitation and would fall outside what MRPC 7.3 permits. The Committee concluded all communications about lawyer services are governed by the ethics rules regardless of medium, with the key factors being who initiated the contact, whether the motive is pecuniary gain, whether there was a prior professional relationship, and whether the recipient is generally situated to find the services useful.

Currency note

This opinion was issued in 1996 and interprets the Michigan Rules of Professional Conduct as they then stood. The MRPC have since been amended, and later opinions may have changed the analysis. The opinion also predates the modern web and contemporary guidance on lawyer marketing through websites and social media. Treat this page as historical context, not current guidance.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: Does a lawyer's website count as solicitation under the Michigan rules?

A: Per the opinion, no. The Committee treated posted information, where the user initiates contact by accessing it, as general advertising governed by MRPC 7.1, not by the solicitation rule MRPC 7.3.

Q: Can a lawyer send marketing email to specific recipients?

A: The opinion concluded that email to a specific addressee or group is treated like direct mail, so MRPC 7.3 applies to the same extent it applies to postal mail, and the content must comply with MRPC 7.1 with copies kept under MRPC 7.2.

Q: Can a lawyer pitch services in a live online chat?

A: The opinion concluded that lawyer-initiated real-time interactive communication begun without invitation is analogous to direct solicitation and falls outside what MRPC 7.3 permits.

Background and rules framework

The opinion interprets MRPC 7.1 (Communications Concerning a Lawyer's Services; Model Rule 7.1), MRPC 7.2 (Advertising, including the requirement to keep a copy of advertising; Model Rule 7.2), and MRPC 7.3 (Direct Contact With Prospective Clients; Model Rule 7.3). The Committee applied the rule's own definition of "solicit," which turns on whether the lawyer or the prospective client initiates the contact, and relied on Shapero v. Kentucky Bar Ass'n, 486 US 466 (1988).

Citations and references

Rules of Professional Conduct:

• MR 7.1 / MRPC 7.1 (communications concerning a lawyer's services)
• MR 7.2 / MRPC 7.2(a) (advertising; retention of copies)
• MR 7.3 / MRPC 7.3 (direct contact with prospective clients)

Cases:

• Shapero v. Kentucky Bar Ass'n, 486 US 466; 108 S Ct 1916; 100 L Ed 2d 475 (1988), targeted direct-mail solicitation

See also

• Mich Ethics Op. RI-99: Seminar Booth Marketing
• Mich Ethics Op. RI-244: Direct-Mail Circular and Affordable Fees
• Mich Ethics Op. R-18: Group TV Advertising Schemes

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1146&Type=6

Original opinion text

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

RI-276

July 11, 1996

SYLLABUS

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 the content of the posted information are observed.

A lawyer may solicit legal business through an electronic mail communication directed to a specific addressee or group of addressees by following the same ethics rules applicable to general and direct mail solicitation.

A lawyer may not solicit legal business during an interactive electronic communication unless ethics rules governing in-person solicitation are followed.

References: MRPC 7.1, 7.2(a), 7.3; Shapero v. Kentucky Bar Ass'n, 486 US 466 (1988).

TEXT

The Committee has been asked whether lawyer advertising on the Internet, through E-Mail or Home Pages, constitutes "direct mail" contact which is permitted under MRPC 7.3 or whether such contact constitutes impermissible contact which is akin to the in-person and telephone contact prohibited by MRPC 7.3.

MRPC 7.3(a) sets forth those attorney contacts which are permissible and impermissible under the rules. MRPC 7.3(a) 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 lawyers doing so is the lawyers pecuniary gain. The term solicit includes contact in person, by telephone or telegraph, 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)." Emphasis added.

MRPC 7.3(b) further restricts a lawyer's conduct with prospective clients that are permissible under MRPC 7.3(a) in that it provides:

"(b) A lawyer shall not solicit professional employment from a prospective client by written or recorded communication or by in-person or telephone contact even when not otherwise prohibited by paragraph (a), if:

"(1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or

"(2) the solicitation involves coercion, duress or harassment."

In evaluating the inquiry, an understanding of the three forms of computer advertising referred to by the inquirer is important. Internet communications may be posted, e.g., on Home Pages, in libraries, or in so-called "chat rooms," to be accessed by Internet users. Internet communications may also be initiated, so that communications are directed to a specific electronic mail "address" or to multiple electronic mail addresses.

Posted information is in the nature of general material, non-targeted, and is seen or used when a user gains access to the venue upon which the information is posted. Since the user initiates the contact with the posted information, MRPC 7.3 is not triggered. A lawyer posting information on Internet must comply with MRPC 7.1 regarding the content of the information posted, and must keep a copy pursuant to MRPC 7.2.

An article which is helpful in evaluating this issue was published in the ABA Lawyers Manual on Professional Conduct, entitled "How Do Advertising Rules Apply to Lawyer's on the 'Net'?" At page 42 of that opinion, the writer notes:

"A lawyer's Web site generally would not appear to involve 'in-person' or 'live telephone contact' so as to fall within a prohibition of Rule 7.3(a) although a visit to the site involves use of telephone lines, the contact is not 'live' so as to be a prohibited contact. Moreover, the contact does not involve an uninvited solicitation, but is more akin to a client's telephoning the firm or walking into the office and asking for information."

In contrast with posting is the sending of an electronic mail communication to a specific addressee or group of addressees. Sending a form communication on Internet is akin to sending postcards through the US Mail or facsimile transmissions. The communication is not as private as sending a sealed letter, and there is an expectation, but no guarantee, that the communication has been received by the intended recipient. MRPC 7.3 applies to such communications about lawyer services to the same extent as the rule applies to communications made through the Postal Service. The fact that the communication is made through telephone lines rather than by motor vehicle is not determinative. Shapero v. Kentucky Bar Ass'n, 486 US 466; 108 S Ct 1916; 100 L Ed 2d 457 (1988), appears to permit such communications. Again, the content of the communications must comply with MRPC 7.1, and copies must be kept pursuant to MRPC 7.2.

A different situation arises if a lawyer is participating in interactive communication on the Internet, carrying on an immediate electronic conversation. If the communication was initiated by the lawyer without invitation, such "real time" communications about the lawyer's services would be analogous to direct solicitation, outside the activity permitted by MRPC 7.3.

In conclusion, all forms of communications about lawyer services are governed by ethics rules, regardless of whether they are in person, on paper, billboard, telephone, fax, computer or otherwise. The important considerations under MRPC 7.3 are whether the contact is initiated by the lawyer or the prospective client, whether the offer of legal services is for pecuniary gain of the lawyer, whether there has been a prior professional relationship, and whether the prospective client is not known to need legal services of the kind offered but is generally situated to find the offered legal services useful.