Thursday, January 01, 2004
by Daniel J. Schulte, J.D.
MDA Legal Counsel
Published in the January 2004 issue of the Journal
Dear Dan Schulte: How far can attorneys go when soliciting clients? An attorney in my community is soliciting clients by running ads in our newspaper, naming a specific dentist and asking patients of that dentist who have experienced problems to call the attorney for a consultation. This doesn’t seem right. Do dentists have some sort of legal recourse to fight this practice?
Answer: The first step is to closely scrutinize the advertisement for the presence of any false and defamatory statements. Such statements could then result in a claim against the attorney for monetary damages. However, if the advertisement simply identifies the dentist and requests his or her patients to contact the attorney, and doesn’t make any statements regarding the particular services of the dentist, then it is unlikely that a jury would find that any such false and defamatory statements occurred.
Michigan law contains no other prohibitions on an attorney advertising in such a fashion that would give the dentist in question a claim for money damages. However, Michigan’s Rules of Professional Conduct (“MRPC”) may contain such a prohibition. The MRPC are the ethical rules that all Michigan attorneys are required to follow. A dentist who believes an attorney has violated the MRPC cannot sue the attorney for money damages — unlike with a claim of defamation. But, the violation may result in a disciplinary action against the attorney. This disciplinary process is administered by Michigan’s Attorney Grievance Commission.
In this particular case, MRPC 7.3 may be applicable to this attorney advertisement. MRPC 7.3 states generally that an attorney cannot solicit employment by prospective clients with whom the attorney has no family or prior professional relationship if the motivation for the solicitation is the attorney’s pecuniary gain. MRPC 7.3 defines “solicit” to include contact in person, by telephone, letter, other writing, or communication directed to a specific recipient. Excluded from this definition are advertising circulars usually distributed to persons not known to need legal services of the kind provided by the attorney in a particular matter, but who might in general find the attorney’s services useful.
The key issue is whether an advertisement such as this one that identifies a specific dentist and requests contact from that dentist’s patients is directed to “a specific recipient.” I believe a good faith argument could be made that the advertisement in this example is so directed to a specific recipient.
In order to start the disciplinary process with the Attorney Grievance Commission, the dentist would complete a Request for Investigation of Attorney Form. This form is available on the Attorney Grievance Commission’s Web site.