Thursday, May 19, 2011

Dissent: Added Clutter Hurts Small Firms

The Michigan Supreme Court has adopted a  new version of Rule 7.3 that prohibits solicitation of accident victims within 30 days of the accident or injury. The rule will implement regulation that is permissible in light of Florida Bar v. Went For It.

There are dissents. The views of Justice Markman are notable:

Although I am not unsympathetic with the sentiments underlying the new rule, the more I reflect upon the rule, the more I am inclined to believe that it will simply add to the clutter of court rules that have already been sufficiently cluttered over the past decade, and without doing anything significant to address particular problems of lawyer advertising. Essentially, as in other states, the floodgates have been opened in Michigan concerning lawyer advertising, with fortunes now spent in this regard on television, radio, billboards, and 1-800-LAWSUIT telephone numbers. In the face of
this transformation of the advertising environment, this Court now issues a new rule focused upon which of the four corners of a postcard soliciting clients the words “advertising material” must appear. The upshot is that those lawyers, and law firms, which engage in client solicitation by the hundreds of thousands will continue to engage in business as usual, while those lawyers, and law firms, which engage in client solicitation one person at a time will become more heavily regulated. Further, the latter group will be prohibited during a 30-day period from soliciting business from certain categories of potential clients, while the former group will be allowed to continue soliciting such business during the same period. For better or for worse, the United States Supreme Court has redefined the rules of the game for lawyer advertising, and I would not indulge in the illusion that by the measure this Court adopts today, we are doing anything of consequence to improve upon these rules. Instead, all that we are doing is 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.

Notwithstanding these well-articulated concerns, the new Rule 7.3 takes effect on September 1.

I'm glad that the jurisdiction where I am licensed would never adopt such a rule. D.C. has no Rule 7.3.

Our Rule 7.1 has virtually no limitation on in-person solicitation except for:

... (d) No lawyer or any person acting on behalf of a lawyer shall solicit or invite or seek to solicit any person for purposes of representing that person for a fee paid by or on behalf of a client or under the Criminal Justice any present or future case in the District of Columbia Courthouse, on the sidewalks on the north, south, and west sides of the courthouse, or within 50 feet of the building on the east side.

Ah, the memories brought back by this little wrinkle in the D.C. Rules.

You can imagine the lawyers sitting at 5th and D streets across from the Indiana Avenue courthouse. Jack's (one of many names of the bar located there) provided a ideal place to sip a beer and look for a likely candidate crossing Indiana (either before or after arraignment). Particularly if someone had left the courthouse without accompanying counsel, there might be a new client crossing the court's delawyerized zone. (Mike Frisch)

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