Michigan Senate Bill 981 would prevent trolling lawyers
Posted on Oct. 28, 2014.
“Sen. Rick Jones’ legislation designed to protect women in domestic violence situations who are seeking a divorce was approved Wednesday [Oct. 1, 2014] by the Michigan Senate,” according to State Senator Rick Jones’ website. The bill is currently awaiting the Michigan House of Representatives’ vote.
Michigan Senate Bill 981 is intended to put a stop to the practice of divorce attorneys soliciting new clients based on recently-filed divorce lawsuits. Divorce filings are public records. There is supposed to be a delay between the suit being filed and the opposing party being served so that the divorcing party can make preparations. This allows time for domestic violence victims to seek safe shelter and a PPO (Personal Protection Order) before an irate, and potentially abusive, spouse finds out about the divorce. What sometimes occurs though, is that a “trolling” divorce attorney will surf the county clerk’s recently posted divorce filings and send letters to the parties named in the divorce filings, soliciting their business for their upcoming divorce suit. Sometimes, this attorney contact is the first the spouse is hearing about a divorce.
In addition to the safety concerns for domestic-violence victims, Correy E. Stephenson highlights some of the pitfalls of the “trolling” practice in a Michigan Lawyers Weekly article; “a 10-year-old learns that his mother has filed for divorce from a letter in the mail; a wife waiting on an ex parte order to freeze joint assets suddenly finds an empty bank account or a n attempt at reconciliation is nearly ruined. All of these scenarios have happened to the clients of Michigan divorce attorneys…”
“The practice is the divorce equivalent of ambulance chasing. Now, the Michigan Senate has taken action with SB 981, a bill sponsored by Senator Rick Jones [R-Grand Ledge], which seeks to prohibit lawyers from contacting a person or family member involved in a divorce filing until 14-days after that person is officially served with the divorce papers,” wrote Timothy P. Flynn in his article, “Senate Bill Prevents Lawyers From Soliciting in Newly Filed Divorces.”
“A first violation would be a misdemeanor with up to a $1,000 fine. A second violation would be punishable by up to a year in prison, a fine of up to $5,000, or both,” according to a press release from Sen. Jones. Several other states, including Ohio, have similar anti-trolling laws.
Flynn’s article emphasizes that attorneys should be adhering the Michigan Rules of Professional Conduct that prohibits some types of client solicitation.
The MRPC Rule: 7.3 Direct Contact With Prospective Clients reads, “(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 lawyer’s doing so is the lawyer’s 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 non-deceptive letters to potential clients known to face particular legal problems” as elucidated in Shapero v Kentucky Bar Assn, 486 US 466, 468; 108 S Ct 1916; 100 L Ed 2d 475 (1988).”
In addition, the code prohibits soliciting prospective clients who have already rejected the attorney’s offer of representation or if “the solicitation involves coercion, duress or harassment.”
Opponents believe that if Senate Bill 981 becomes a law, it will limit attorneys’ First Amendment rights to free speech. They argue that the threat of MRPC sanction should be enough to prevent irresponsible client solicitation.
Whether the bill passes or not, Flynn recommends, “When we are hired to file a complaint for divorce in the family court, we always advise our client that the new law suit is not a well kept secret. We inform our clients that: a) trolling lawyers are out there, and they will solicit the business of their spouse; b) within a day or two, the filing is reflected on the county clerk’s court records on the Internet; and c) new case filings are contemporaneously published in the local legal newspaper.”
Michigan Divorce Attorney Kathryn Wayne-Spindler is anxious to see the bill approved. As she states, “there are some violent spouses out there and it doesn’t take much to provoke them. It makes me sick to think that just as an abuse-victim has gotten the nerve to leave a hazardous situation, she could be put in even more danger by a spouse finding out about the divorce before she’s prepared.”
Michigan Lawyers Weekly, “Divorce Solicitation: Letter-writing prompts concerns for clients, professionalism,” Correy E. Stephenson, July 15, 2013.
Electronic Divorce Attorney, “Senate Bill Prevents Lawyers from Soliciting in Newly Filed Divorces,” Timothy P. Flynn, Oct. 18, 2014.
State Senator Rick Jones, “Senate approves Jones bill to protect women in domestic violence situations,” Senator Rick Jones, Oct. 1, 2014.