Sunday, June 7, 2015

Michigan Legislature Again Seeks to Restrict Divorce Trolling

We lawyers are not supposed to be soliciting anyway, as it is expressly prohibited in the Rules of Professional Conduct.  But over the years, a small group of divorce lawyers, unable to get clients any other way, send solicitation letters to people with the misfortune of having their spouse file for divorce. 

The practice is the divorce equivalent of ambulance chasing.  Now, the Michigan Senate again has taken action with SB 351, a seemingly perennial 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 21-days after that person is officially served with the divorce papers. 

Our law firm has experienced this divorce solicitation practice first hand: we are retained by a client to commence and prosecute a divorce proceeding, we file the complaint with the county clerk, and before we can even get the other party served, BAM; a solicitation letter hits the mailbox and all Hell [potentially] breaks loose. 

This latest Senate bill, introduced toward the end of May, is the third attempt in 4-years to block the questionable practice. 

The primary concern among the divorce professionals who support the legislation is that, in cases of domestic violence, the spouse who filed for divorce needs time to seek a personal protection order.  They also point to inflammatory language often contained in the solicitation letters as well as their effect of casting general derision upon our once-great profession as a whole. 

In the past, industry professionals opposing past iterations of the measure have indicated that the bill would have unintended consequences: a first offense is a misdemeanor carrying a fine of $1000; repeat offenders could do up to a year in jail and face a $5000 fine.  

Citing an undue restriction to commercial free speech, the Michigan Supreme Court declined to support the bill through a requested amendment to the professional conduct rules that would prohibit trolling for divorce clients. The State Bar of Michigan's Family Law Section has long-championed this type of prohibition, relying mostly on the domestic violence argument.  The Section attempted to get the applicable court rules on service of process changed -something handled by the Michigan Supreme Court rather than the legislature- but the MSC declined on the basis that insufficient empirical data was presented in support of such a procedural rule change. 

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. 

As much as we support legislation designed to curb or limit domestic violence, we here at this blog believe that SB 351 [and its immediate predecessor SB 981], as proposed, may suffer from constitutional defects. First, the measure interferes with a lawyer's important First Amendment freedoms, however distasteful the message. Regrettably, family law is a complex industry featuring a busy intersection where advertising and public records collide. 

Second, as drafted, the measure seems overbroad, criminalizing conduct not targeted by the legislation and having an overall chilling effect on otherwise legal activities.  Third, opponents cite to the right of timely notice when being sued and note that no other area of law imposes similar restrictions on the bar.

If you or a family member are in need of legal advice in the family law area, contact our law firm for a free consultation.

www.clarkstonlegal.com 
info@clarkstonlegal.com

1 comment:

Jennifer Davies said...

I'm glad they're moving the legislate against this. Lawyers shouldn't be able to solicit, especially since it can actually put more pressure on a couple who's considering it. Finding a lawyer is the worst case scenario for divorce, and it shouldn't be rushed. http://www.bhtampa.com