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Jules Olsman on amendment to Professional Conduct Rule on Advertising

By Steve Thorpe
Legal News

On May 30, 2018, the Michigan Supreme Court adopted an amendment to Rule 7.2 of the Michigan Rules of Professional Conduct that takes effect September 1. The amendment is intended to identify at least one lawyer responsible for an advertisement’s content as a way to provide potential clients with important information when the services are advertised under the heading of a phone number, web address or trade name. The amendment was made at the recommendation of the State Bar of Michigan Representative Assembly. The adopted language of the amendment reads:

“Services of a lawyer or law firm that are advertised under the heading of a phone number, web address, or trade name shall identify the name, office address, and business telephone number of at least one lawyer responsible for the content of the advertisement.”

Attorney Jules B. Olsman is president of Olsman MacKenzie & Wallace and has practiced personal injury law in Michigan for 36 years. Olsman is a past president of the Michigan Association for Justice and has served as an adjunct professor at Michigan State University College of Law where he taught medical malpractice litigation. He is a past chair of the State Bar Negligence Law Section and a founding member of the American Association for Justice Nursing Home Litigation Group. He earned his J.D. at Detroit College of Law.

Thorpe: Give us some historical background on this issue.

Olsman:
In recent years, certain attorneys have begun the practice of anonymous advertising, i.e., GreatLawyer.com. In my opinion, this type of advertising is misleading and demeaning. The purpose of Rule 7.2 is to identify to members of the public who precisely is responsible for the ad. The rule requires that at least one attorney responsible for paying for its content must be identified in the ad by name. This will prevent out-of-state law firms and/or non-legal entities from attempting to pass themselves off as attorneys. This type of advertising is demeaning because lawyers provide the public with critically important services. We are officers of the court. We do not sell plumbing supplies. It is critically important that the public know who precisely is being retained to provide legal services for them.

Thorpe: Mark Twain, in “A Connecticut Yankee in King Arthur’s Court,” wrote “Many a small thing has been made large by the right kind of advertising.” How much of this is about decorum and how much is about misrepresentation?

Olsman:
This is not about decorum. Many people already feel that attorney ads are totally lacking in decorum. This is about misrepresentation. It is to assure that entities that advertise that they provide legal services are, in fact, entities owned by attorneys or actually employ attorneys to provide these services.

Thorpe: You’ve been quoted as saying that the changes aren’t about the content of the ad but about who is behind the ad. Explain.

Olsman:
We are not regulating content. We are requiring those who choose to advertise anonymously to simply place a banner on the ad indicating the name of the law firm or lawyer who is paying for it. For example, the banner “Sam Bernstein Law Firm” appears on every ad that the Bernstein family employs. Mark Bernstein was a strong supporter of the changes brought about by MRPC 7.2.

Thorpe: How has the internet changed the landscape of lawyer advertising?

Olsman:
The internet has caused attorney advertising to assume “warp speed” status. The public can now scan their smart phones or electronic devices in virtually every location. The amount of attorney advertising on social media is already over the top. Ten years ago, phone books were the way to go and were a preferred method of attorney advertising. Today people ask, “What’s a phone book?”

Thorpe: You’ve been pushing for changes in the rule for years. Why did it take so long?

Olsman:
The changes to MRPC 7.2 were initially opposed by many of the large established law firms that believe they were advertising under a trade name such as Dykema or Honigman. The points raised by these firms were deemed meritorious. If one Googles “Honigman,” the entire law firm will appear on the website. The same is true for the other entities. The goal here is to identify who is paying for the ad. The rule should be known as the “who are you” rule.

Thorpe: Are there further changes to the rule you would like to see?

Olsman:
Florida and Illinois have recently begun to consider regulations for services such as 1-800-FOR-PAIN that are essentially attorney referral services. I believe that these entities are helping to contribute to the perception that the Michigan no-fault system is simply out of control and requires reform. I also believe that if the public chooses to utilize the services of one of these entities and they are provided with the name of an attorney through the service, the client must be informed if a referral fee is being paid to that entity. This is a “brave new world” that will require study and analysis. However, the topic has definitely been placed on the tee and will be aggressively pursued.

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