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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


California Legal Ethics

VII. INFORMATION ABOUT LEGAL SERVICES

7.1   Rule 7.1 Communications Concerning a Lawyer's Services

7.1:100   Comparative Analysis of CA Rule

Primary California References: CRPC 1-400, B&PC 6157, 6158
Background References: ABA Model Rule 7.1, Other Jurisdictions
Commentary:

7.1:101      Model Rule Comparison

MR 7.1 broadly prohibits lawyers from making false or misleading communications about the lawyer or the lawyer's services but does not limit or define the term "communication." The MR 7.1 Comment states that the rule "governs all communications about a lawyer's services, including advertising permitted by Rule 7.2." CRPC 1-400, on the other hand, restricts the use of communications and solicitations, and defines both of these terms with great specificity in CRPC 1-400(A) and CRPC 1-400(B) respectively. Despite the specificity of the definitions, CRPC 1-400 covers substantially all communications; therefore, it does not differ materially in scope from MR 7.1.

MR 7.1 prohibits an attorney from making a false or misleading communication about the lawyer or the lawyer's services. MR 7.1(a) states that a communication is false or misleading if it "contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading." Therefore, only communications that are "materially misleading" violate MR 7.1.

The scope of CRPC 1-400 is broader than that of MR 7.1, and does not have a materiality requirement. CRPC 1-400(D)(1) and (3) respectively prohibit a communication from containing "any untrue statement" or from omitting to state "any fact necessary to make the statements made, in the light of circumstances under which they are made, not misleading to the public." CRPC 1-400 prohibits a communication from containing any deceptive matter. Consistent with this standard, B&PC 6157.1 prohibits attorney advertisements from containing "any false, misleading or deceptive statement." Likewise, CRPC 1-400(D)(2) broadly prohibits a communication from containing any matter, or presenting or arranging any matter "in a manner or format which is false, deceptive, or which tends to confuse, deceive, or mislead the public." Consequently, CRPC 1-400(D)(2) additionally prohibits the presenting or arranging of "true" matter in a way that confuses or deceives the public.

CRPC 1-400 provides additional restrictions on a lawyer's communications that are not contained in MR 7.1. For example, CRPC 1-400(D)(4) prohibits a communication that does not clearly indicate in some manner that it is a communication or a solicitation, with the caveat that the indication can be made by the context of the solicitation. This policy is reflected in CRPC 1-400 Standard 5 that presumes that communications made for the purpose of seeking professional employment for pecuniary gain which do not bear the word "Advertisement," "Newsletter," or words of similar import, violate CRPC 1-400.

Likewise, CRPC 1-400 imposes restrictions on communications to potential clients who are distraught or are in a vulnerable mental, physical, or emotional states, including those who have just experienced an accident or are injured. CRPC 1-400(D)(5) broadly prohibits a communication or solicitation that is "transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats or vexatious or harassing conduct." This policy is reflected in CRPC 1-400 Standard 3 and CRPC 1-400 Standard 4, which presume that communications to a potential client who is "in such a physical, emotional, or mental state that he or she would not be expected to exercise reasonable judgement as to the retention of counsel," and communications that are "transmitted at the scene of an accident or at or en route to a hospital, emergency care center, or other health care facility," violate CRPC 1-400.

Additionally, CRPC 1-400(D)(6), which became effective June 1, 1997, prohibits a communication or solicitation from stating that a member is a "certified specialist" unless the member holds a current certificate as a specialist issued by an entity accredited by the State Bar to designate specialists, and the communication states the complete name of the entity that granted certification. This rule substantively replaced former CRPC 1-400 Standard 11, repealed effective June 1, 1997.

Also, CRPC 1-400(F) requires that members of the Bar retain a copy of any communication made by written or electronic media, and on request provide to the State Bar a copy as well as evidence to support any factual or objective claim contained in the communication.

In addition, CRPC 1-400(E) sets forth examples of communications that are presumed to violate CRPC 1-400.

Given the specificity and breadth of the Standards presumed to violate CRPC 1-400, the scope of CRPC 1-400 appears to be broader than that of MR 7.1. See CRPC 1-400 Standards.

The B&PC provides additional restrictions on lawyer advertising not found in MR 7.1 or in CRPC 1-400. Advertisements containing statements to the effect that the member can generally obtain immediate cash or quick settlements are prohibited by B&PC 6157.2(b). There are restrictions on impersonations of persons who directly or implicitly purport to be either the lawyer or the lawyer's client in B&PC 6157.2(c)(1) and (2). The use of spokespersons in advertisements is prohibited by B&PC 6157.3, unless the advertisement discloses the spokesperson's title.

Additionally, B&PC 6158 contains a special provision requiring that electronic media advertising cannot be false, misleading or deceptive "as a whole." B&PC 6158.2 lists several categories of information presumed to be in compliance with B&PC 6158. And B&PC 6158.1 includes three rebuttable presumptions that advertisements containing the following messages violate B&PC 6158.

Therefore, the B&PC expands the scope of prohibitions on lawyer's electronic media advertising in California imposed by CRPC 1-400.

7.1:102      Model Code Comparison

DR 2-101 provides that "[a] lawyer shall not . . . use . . . any form of public communication containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim." Like CRPC 1-400, DR 2-101 broadly prohibits deceptive communications, and like MR 7.1, it does not define what constitutes a communication. DR 2-101 has additional prohibitions not paralleled in CRPC 1-400 or MR 7.1 against making "self-laudatory" statements or claims, as well as against "unfair communications." It is unclear whether a state may permissibly enforce a rule like DR 2-101(B) that prohibits "self laudatory" advertising statements by a lawyer. One permissible basis for such regulation is presented in the Supreme Court's prior reasoning that claims made in such advertising are not susceptible of proof. See Bates v. State Bar of Arizona (1977) 433 U.S. 350, 383-84, 54 L.Ed.2d 810, 97 S.Ct. 2691.

DR 2-101(B) also lists 25 categories of information that a lawyer may provide that will not violate DR 2-101. DR 2-101(C) provides that "[a]ny person desiring to expand the information authorized for disclosure [in the 25 categories] . . . may apply to [the agency having jurisdiction under state law] . . .". However, the information contained in the 25 categories can be provided only in the geographic area or areas in which the lawyer resides, maintains his offices, or in which a significant part of the lawyer's clientele resides, and must be presented in a dignified manner. DR 2-101 thus imposes both a geographic restriction and a "dignity" restriction on communications not found in MR 7.1 or in CRPC 1-400.

7.1:200   Lawyer Advertising--In General

Primary California References: CRPC 1-400, B&PC 6157, 6158, 6000-6228
Background References: ABA Model Rule 7.2, Other Jurisdictions
Commentary:

The following excerpts are taken from Karpman & Margolis pages 13-15 with certain conforming changes:

The regulation of the means by which lawyers secure business has been one of the fastest growing and evolving areas in the law. Prohibition of lawyer advertising and solicitation is subject to strict constitutional scrutiny. Constitutional rights of speech, press, and association apply to lawyers as well as to other private citizens, and may not be abridged except in cases of compelling state interest. Even then, restrictions employed in furtherance of that interest must be narrowly drawn to avoid unnecessary curtailment of First and Fourteenth Amendment rights. Over the past 20 years, the United States Supreme Court has decided a number of cases in the area of lawyer advertising and solicitation. As its determination of permissible state regulation has changed and evolved over the years, the State Bar of California has re-examined and revised its own regulatory standards.

Chapter 518 of the Statutes of 1993 enacted a comprehensive regulatory scheme to further regulate lawyer advertising. It added B&PC 6157 et seq. In addition to the existing prohibitions against false and misleading advertising, the legislation prohibits representations that a lawyer can obtain "immediate cash" or "quick settlements;" precludes the use of dramatizations, unless disclosure of the impersonation or dramatization is also made in the advertisement; requires advertisements claiming "no recovery, no fee" to advise if the client will be responsible for costs; compels the disclosure of any business relationship between a lawyer and the person or entity paying for the lawyer's advertisement; and requires lawyer referral services that advertise to disclose whether they were paid any additional consideration by lawyers on their referral list for such advertising. The legislation also requires courts to report violating lawyers to the State Bar for possible disciplinary action. The legislation contains a one-year advertisement records retention policy, which conflicts with the two-year retention policy contained in CRPC 1-400(F).

Legal advertising was further regulated by Chapter 711 (Assembly Bill 3659) of the Statutes of 1994. Among other provisions, Chapter 711 added B&PC 6158-6158.7 on the subject of legal advertising by electronic media. For the text of these provisions, see B&PC 6000-6228.

In Florida Bar v. Went For It, Inc. (1995) 515 U.S. 618, 132 L.Ed.2d 544, 115 S.Ct. 2371, the United States Supreme Court held that Rules 4-7.4(b)(1) and 4-7.8(a) of the Florida Bar Rules, which together created a 30-day blackout period after a personal injury, wrongful death, or other accident, during which lawyers may not directly or indirectly single out accident victims or their relatives in order to solicit their business, do not violate the First and Fourteenth Amendments. Justice O'Connor, writing for a 5-4 majority, stated that the bar has a substantial interest in both protecting injured persons from invasive conduct by lawyers and in preventing the erosion of confidence in the profession that such repeated conduct has engendered. The majority opinion noted that the ban's scope is reasonably well tailored to its stated objective, its duration is limited, and there are many other ways for injured persons to learn about the availability of legal representation during that time.

This surprising 5-4 decision represents a departure from a line of cases over two decades invalidating state attorney regulation schemes.

Under the intermediate scrutiny framework set forth in Central Hudson Gas & Electric Corp. v. Public Service Comm'n of N.Y. (1980) 447 U.S. 557, 65 L.Ed.2d 341, 100 S.Ct. 2343, a restriction on commercial speech that, like the advertising at issue, does not concern unlawful activity and is not misleading is permissible if the government (1) asserts a substantial interest in support of its regulation; (2) establishes that the restriction directly and materially advances that interest; and (3) demonstrates that the regulation is narrowly drawn. The majority maintained that Florida had a substantial interest in protecting the privacy and tranquility of personal injury victims and their loved ones against intrusive, unsolicited contact by lawyers. The Court noted that the Florida Bar had justified its rules with both empirical and anecdotal evidence of harm caused to citizens by post-accident contacts, and emphasized that the rules target a concrete, nonspeculative harm. Finally, the Court noted that it is a short temporal ban, reasonably well-tailored "to eliminate distress to Floridans."

Justice Kennedy, writing for the dissent, stated that this case unsettles First Amendment precedent, at the expense of those victims most in need of legal assistance. "We do not allow restrictions on speech to be justified on the ground that the expression might offend the listener or that some members of the bar might find beneath their dignity." Moreover, the dissent emphasized that this type of restriction is censorship pure and simple and is antithetical to the first principles of free expression. Noting the need for representation at the earliest possible date, the dissent expressed concern about spoilation of evidence. With respect to the Central Hudson analysis, the dissent argued that the evidence offered by the State fell well short of demonstrating that the harms it was trying to redress were real, let alone that the regulation directly and materially advanced the State's interest.

In conclusion, Justice Kennedy emphasized that this opinion is a serious departure, not only from the Court's prior decisions involving lawyer advertising, but also from the principles that govern the transmission of commercial speech. The Court's opinion reflects a new-found and illegitimate confidence that it, along with the Supreme Court of Florida, knows what is best for the Bar and its clients.

7.1:210      Prior Law and the Commercial Speech Doctrine

Today, lawyer advertising is recognized as commercial speech, and receives an intermediate level of First Amendment protection. See ABA/BNA 81.101. But, until the 1970s, lawyer advertising was strictly and broadly forbidden by official rules like 1908 Canon 27. See Wolfram 14.2.

In 1977, the Supreme Court first extended the commercial speech doctrine to certain forms of lawyer advertising, holding that broad prohibitions against lawyer advertising constituted unconstitutional restraints on a lawyer's freedom of expression. Bates v. State Bar of Arizona (1977) 433 U.S. 350, 383, 53 L.Ed.2d 810, 97 S.Ct. 269 (citing Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976) 425 U.S. 748, 48 L.Ed.2d 346, 96 S.Ct. 1817). While the Bates decision marked the end of broad prohibitions against lawyer advertising, the Court stated that "reasonable restrictions on the time, place and manner of advertising" would be constitutional, and advertising that is false, deceptive or misleading is subject to restraint. See Id. at 383-384.

After the Bates decision, the Supreme Court decided several cases that expanded a lawyer's First Amendment rights to advertise, and disapproved state restrictions on lawyer advertising on the grounds that the restrictions were overly broad. In 1982, the Court reversed a Missouri decision to discipline a lawyer for advertising that exceeded the Missouri "laundry list" of permissible statements, and held that a lawyer's listing of areas of practice and the jurisdictions where the lawyer was licensed to practice was constitutionally protected. See In re R.M.J. (1982) 455 U.S. 191, 71 L.Ed.2d 64, 102 S.Ct. 929. In 1985, the Court held that a lawyer should not be disciplined for publishing newspaper advertisements containing truthful and nondeceptive information aimed at women injured by the Dalkon Shield. See Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985) 471 U.S. 626, 85 L.Ed.2d 652, 105 S.Ct. 2265. In 1988, the U.S. Supreme Court held that states cannot categorically ban targeted direct mail solicitation of clients where the information contained in the solicitations is truthful and nondeceptive. See Shapero v. Kentucky Bar Ass'n, (1988) 486 U.S. 466, 100 L.Ed.2d 475, 108 S.Ct. 1916. And in 1990, the Supreme Court held that a state may not completely ban a lawyer from advertising that the lawyer is certified as a trial specialist by the National Board of Trial Advocacy on the grounds that it may confuse the public into believing that the lawyer is somehow associated with a governmental agency, because such a statement is not actually or inherently misleading. See Peel v. Attorney Registration & Disciplinary Comm'n of Illinois (1990) 496 U.S. 91, 71 L.Ed.2d 64, 100 S.Ct. 2281.

More recently, the trend of Supreme Court decisions appears to indicate a shift toward approving state restrictions on advertising. In 1995, the Court upheld a challenged Florida Bar restriction that prohibited lawyers from sending targeted direct-mail solicitations to accident victims or their families for 30 days after the accident. The Court applied the three prong Central Hudson standard, reasoning that a state may proscribe solicitations that are not misleading if the government (1) asserts a substantial interest in support of its regulation, (2) establishes that the restriction directly and materially advances the interest, and (3) demonstrates that the interest is narrowly drawn. See Florida Bar v. Went For It Inc. (1995) 515 U.S. 618, 132 L.Ed.2d 544, 115 S.Ct. 2371, 2376-81 (citing Central Hudson Gas & Electric Corp. v. Public Service Comm'n of N.Y. (1980) 447 U.S. 557, 65 L.Ed.2d 341, 100 S.Ct. 2343).

For a thorough analysis of the constitutional issues relating to lawyer advertising, see 30 ALR 4th 742.

7.1:220      False and Misleading Communications

MR 7.1(a) states that a communication is false or misleading if it "contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading." CRPC 1-400 does not contain a materiality requirement, and prohibits communications from containing any deceptive matter, or presenting it in a way that tends to confuse or mislead the public.

Applying CRPC 1-400, the California Supreme Court has held that an attorney's mass mailing offering assistance in the filing of homestead declarations is deceptive and misleading where the attorney fails to explain that homeowners automatically receive a homestead exemption even if they do not record a homestead declaration and erroneously suggests that the recording of a homestead declaration necessarily prevents the forced sale of a home. See In re Morse (1995) 11 Cal.4th 184, 201-02, 44 Cal.Rptr.2d 620, 900 P.2d 1170. Additionally, the Court held that since the arrangement of the attorney's materials tended to mislead the recipient into believing that the letter came from the recipient's lender, the advertisement also violated CRPC 1-400(D). In re Morse (1995) 11 Cal.4th 184, 202, 44 Cal.Rptr.2d 620, 900 P.2d 1170.

7.1:230      Creating Unjustifiable Expectations

CRPC 1-400 Standards 1 and 2 presume that communications that contain guarantees, warranties, or predictions regarding the result of the representation, or communications that contain testimonials or endorsements of a member (unless the communication contains an express disclaimer that it is not a guarantee, warranty or prediction) violate CRPC 1-400. While not similar in language, the Standards largely achieve the same result as MR 7.1(b). There have been no opinions rendered in the California courts on this particular issue to date.

7.1:240      Comparison with Other Lawyers

MR 7.1(c) prohibits lawyers from making communications that compare the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated. CRPC 1-400 does not have a specific analogous provision addressing this issue. Since CRPC 1-400(D)(2), more broadly than MR 7.1, prohibits a communication from containing any deceptive matter, CRPC 1-400 would probably achieve the same result as MR 7.1 on this issue. There have been no opinions rendered in the California courts on this particular issue to date.

7.2   Rule 7.2 Advertising

7.2:100   Comparative Analysis of CA Rule

Primary California References: CRPC 1-400, 1-320, B&PC 6157, 6159, 6158
Background References: ABA Model Rule 7.2, Other Jurisdictions
Commentary:

7.2:101      Model Rule Comparison

Consistent with MR 7.2(a), B&PC 6157 et seq. and CRPC 1-400 contemplate that a lawyer may advertise the availability of a lawyer or a law firm for professional employment subject to restrictions regarding false, misleading or deceptive statements. B&PC 6157 et seq. and CRPC 1-400 go on to set forth detailed guidelines regarding the permissible content of lawyer advertisements.

CRPC 1-400(F) parallels the requirement of MR 7.2(b) regarding retention of copies or recordings of advertisements for two years. CRPC 1-400(F) further requires, upon request, that the lawyer provide a copy or recording and evidence supporting factual or objective claims therein to the State Bar. B&PC 6159.1 requires the lawyer or person paying for an advertisement soliciting lawyer employment to retain a copy of the advertisement for one year. No provision of B&PC Article 9.5 limits or precludes the enforcement of any provision of the CRPC. B&PC 6159.2(a).

As in MR 7.2(c)(1), CRPC 1-320(B) prohibits a lawyer from compensating a person for recommending employment of the lawyer or the lawyer's law firm. In addition, CRPC 1-320(C) prohibits a lawyer from compensating a media representative for providing publicity for a lawyer or the lawyer's law firm in a news item. Similar to MR 7.2(c)(2), CRPC 1-320(A)(4) permits a lawyer to pay prescribed participation fees to lawyer referral services that meet the California Minimum Standards for Lawyer Referral Services. B&PC 6155. California has no rule comparable to MR 7.2(c)(3). However, purchase of a law practice is permitted in accordance with the provisions of CRPC 2-300. [See Rule 1.17 Sale of Law Practice, supra].

California has no rule comparable to MR 7.2(d).

7.2:102      Model Code Comparison

DR 2-101 addresses permissible publicity for a lawyer. As in DR 2-101(A), B&PC 6157.1 and CRPC 1-400(D) prohibit advertisements which contain false, misleading or deceptive statements or omit any facts necessary to make the statements made, in light of the circumstances under which they are made not false, misleading or deceptive. Pursuant to the authority granted in CRPC 1-400(E), the Board of Governors of the State Bar has adopted detailed standards regarding forms of communications which are presumed to violate the rule.

DR 2-101(B) sets forth categories of information that may properly be included in lawyer advertisements. B&PC 6158.2 approves categories of information substantially similar to those in DR 2-101(B)(1-14). In addition, B&PC 6158.2(c) allows for the disclosure of fees for routine legal services. The statute does not include a provision similar to DR 2-101(C) setting forth a procedure for the expansion of the information categories in DR 2-101(B).

While CRPC 1-400(F) requires a lawyer to maintain copies or recordings of communications over electronic media similar to DR 2-101(D), the Rule has no comparable requirement that the communications be prerecorded or "approved for broadcast by the lawyer."

California has no rules comparable to DR 2-101(E), (F) and (G). However, B&PC 6157.2(d) provides that if representation on a contingent basis is offered in an advertisement, the client will not be responsible for costs advanced unless the client is so advised in the advertisement.

As in DR 2-103(B), CRPC 1-320(B) prohibits a lawyer from compensating a person for recommending employment of the lawyer or the lawyer's law firm. DR 2-103(B) excepts from this prohibition usual fees charged by organizations listed in DR 2-103(D) (certain legal aid, public defender or military assistance offices, lawyer referral services and organizations operating legal services plans). However, CRPC 1-320(A)(4) permits a lawyer only to pay prescribed participation fees to lawyer referral services that meet the California Minimum Standards for Lawyer Referral Services. B&PC 6155.

7.2:200   Permissible Forms of Lawyer Advertising

Primary California References: CRPC 1-400, B&PC 6157, 6158, 6159
Background References: ABA Model Rule 7.2(a), Other Jurisdictions
Commentary: ABA/BNA 81.201, Wolfram 14.2

B&PC 6157 et seq. and CRPC 1-400 contain no restrictions regarding any medium of advertising for lawyers. However, B&PC 6157 et seq., CRPC 1-400 and the standards for communications adopted by the State Bar pursuant to CRPC 1-400(E) do contain restrictions on the content of advertisements.

B&PC 6157.1 contains a general statement, consistent with MR 7.1, that "[n]o advertisement shall contain any false, misleading or deceptive statement or omit to state any fact necessary to make the statements made, in light of circumstances under which they are made, not false, misleading or deceptive." In addition, B&PC 6158 provides that, in advertising by electronic media (defined as television, radio or computer networks), "the message as a whole," including its sound, background, symbols, visual images, etc., may not be false, misleading and deceptive and must be "factually substantiated." However, certain advertising content is specifically restricted in B&PC 6157.2; and B&PC 6158.1 creates a rebuttable presumption that other advertising content is false, misleading or deceptive. See B&PC 6157.2; B&PC 6158.1.

CRPC 1-400 defines advertising "communications" and prohibits, among other matters, any communication which contains an untrue statement, is false, deceptive or tends to mislead, fails to indicate clearly that it is a communication or solicitation, or is transmitted "in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct." Pursuant to the authority granted in CRPC 1-400(E), the Board of Governors of the State Bar has adopted detailed standards regarding forms of communications which will be presumed to violate CRPC 1-400. See CRPC 1-400 Standards. In In re Morse (1995) 11 Cal.4th 184, 44 Cal.Rptr.2d 620, 900 P.2d 1170, the California Supreme Court determined that mass mailing advertisements regarding the filing of homestead declarations were misleading under CRPC 1-400(D)(2), as the arrangement of the attorney's materials tended to mislead the recipients into believing that the mailing came from the recipients' lenders.

The foregoing notwithstanding, the application of the restrictions on advertising set forth in B&PC 6157 et seq. and CRPC 1-400 is limited to the extent that the restrictions limit the right of advertising protected under the California and United States Constitutions. See B&PC 6159.2(b), CRPC 1-400(C).

The following excerpts are taken from Karpman & Margolis pages 16-20 with certain conforming changes:

Advertising in media was authorized as First Amendment-protected commercial speech in Bates v. State Bar of Arizona (1977) 433 U.S. 350, 53 L.Ed.2d 810, 54 L.Ed.2d 164, 97 S.Ct. 2691, and Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985) 471 U.S. 626, 85 L.Ed.2d 652, 105 S.Ct. 2265. The U.S. Supreme Court held that the blanket prohibition of such advertising is not sufficiently related to the state's interest in protecting lawyer professionalism and the quality of legal services so as to justify an outright ban on advertising. The state may regulate the content of advertising through more narrowly drawn restrictions. Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985) 471 U.S. 626, 85 L.Ed.2d 652, 105 S.Ct. 2265, 2282-2283. Lawyers are permitted to advertise the availability and terms of routine legal services, but the State may regulate and prohibit advertising that is false, deceptive and misleading. Bates v. State Bar of Arizona (1977) 433 U.S. 350, 383-384, 54 L.Ed.2d 810, 97 S.Ct. 2691; In re R.M.J. (1982) 455 U.S. 191, 203, 71 L.Ed.2d 64, 102 S.Ct. 929), or is transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct, CRPC 1-400(D)(5); or advertising that may be factually truthful, but which has a likelihood of misleading the public. Leoni v. State Bar (1985) 39 Cal.3d 609, 624-627, 217 Cal.Rptr. 423, 704 P.2d 183.

Radio or Television Advertising

The distinctive characteristics of radio and television may authorize additional regulation of lawyer advertising through those media. Bates v. State Bar of Arizona (1977) 433 U.S. 350, 384, 54 L.Ed.2d 810, 97 S.Ct. 269. In California, advertising in the electronic media is permitted to the same extent as printed advertising. However, a lawyer must retain for two years a true and correct copy or recording of any advertisement in the electronic media; furnish such copy upon request to the State Bar, and provide to the Bar, upon request, evidence to support any factual claim contained in the advertisement. CRPC 1-400(F).

Some limited supplementation, by way of warning or disclaimer, may be required of advertisements regarding the quality of legal services, in order to assure that the consumer is not misled. Bates v. State Bar of Arizona (1977) 433 U.S. 350, 384, 54 L.Ed.2d 810, 97 S.Ct. 2691; In re R.M.J. (1982) 455 U.S. 191, 202, 71 L.Ed.2d 64, 102 S.Ct. 929 (use of warnings and disclaimers can reduce misleading possibilities in an ad).

Practice Tip: Before using any form of electronic advertising (including on-line computer services or the Internet), an attorney must consider the restrictions, limitations, and requirements of B&PC 6158-6158.7. This statute was enacted in 1995 and no cases have been brought to test its validity. In light of Florida Bar v. Went for It, Inc. (1995) 515 U.S. 618, 132 L.Ed.2d 544, 115 S.Ct. 2371, it could pass constitutional muster. According to this statute, electronic media advertising creates a rebuttable presumption of being false and misleading. The statute specifically addresses depiction of accident scenes, media representation of successful recovery by existing or potential clients taken out of context and creates a direct civil cause of action granting standing to any citizens of the State for an amount up to $5000 for each individual broadcast in violation of the statute.

See also B&PC 6158 et seq., enacted in 1994, regulating legal advertising by electronic media.

Newspaper Advertising

The state may not categorically prohibit solicitation of legal employment for pecuniary gain through newspaper advertisement containing information or advice that was truthful and non-deceptive. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985) 471 U.S. 626, 85 L.Ed.2d 652, 105 S.Ct. 2265 (newspaper advertisement advising readers of firm's availability to handle drunk driving cases and to represent women suffering injuries from the Dalkon Shield may not be barred simply because of use of illustration, or because the advertisement contained information and offer of legal advice regarding a specific legal problem).

Advertising as a "legal clinic" in a newspaper is not misleading if it refers to law office geared to provide standardized and multiple services. Bates v. State Bar of Arizona (1977) 433 U.S. 350 at 372-373, fn.26, 381-382, 54 L.Ed.2d 810, 97 S.Ct. 2691.

Lawyers' participation in the preparation of news articles about themselves and their low cost legal clinic constituted the exercise of constitutionally protected rights of freedom of speech and freedom of the press; the State Bar could not impose a blanket prohibition against such conduct. Jacoby v. State Bar of California (1977) 19 Cal.3d 359, 138 Cal.Rptr. 77, 562 P.2d 1326 (decided under former Rule 2).

Announcements, Mailings, and Handbills

Lawyers are permitted to advertise by general mailings of announcement cards and to include in their advertisements lists of jurisdictions where they are licensed to practice and areas of specialization. In re R.M.J. (1982) 455 U.S. 191, 205-206, 71 L.Ed.2d 64, 75-76, 102 S.Ct. 929.

A lawyer who engages in solicitation activity on behalf of a nonprofit organization engaging in litigation as a form of political expression and association may not be disciplined without proof of actual wrongdoing. In re Primus (1978) 436 U.S. 412, 56 L.Ed.2d 417, 98 S.Ct. 1893 (ACLU lawyer may advise the public, by mail, of the availability of free legal assistance; such conduct was not undertaken for profit, and did not involve overreaching, misrepresentation or invasion of privacy).

Mere announcement by a lawyer of his participation in public activity does not constitute violation of this rule. Bushman v. State Bar (1974) 11 Cal.3d 558, 570, 113 Cal.Rptr. 904, 552 P.2d 312.

Targeted Direct Mail

In In re Morse (1995) 11 Cal.4th 184, 44 Cal.Rptr.2d 620, 900 P.2d 1170, the first disciplinary case reviewed since the establishment of the State Bar Court Review Department. The California Supreme Court increased a lawyer's penalty ten fold from an initial sixty day suspension to either three years actual or two years actual and ordered the prompt payment of $800,000 in civil penalties. The lawyer had mailed over 4 million misleading and deceptive advertisements that urged recipients to hire him to file unnecessary homestead declarations.

In a 6-1 decision, the Court stated that the substantially increased discipline was justified due to the persistence of Respondent's continued false and deceptive ad campaign. After having been ordered to stop, his conduct went beyond tenacity to truculence. In January 1991, the Attorney General obtained an injunction against the false, deceptive, illegal mass mailings sent to millions of strangers, and Respondent was ordered to pay $800,000 in penalties.

Using the loadstar of public protection as guidance, the Supreme Court determined that Morse's misconduct reflected a callous disregard for those most in need of protection by the profession and the courts. Three years was justified on the basis of a lack of remorse and the fact that a mini-reinstatement demonstrating rehabilitation would be required prior to resuming practice.

In dissent, Justices Mosk and Kennard stated that it appeared that Morse was being disciplined for having the temerity to seek review of his State Bar case in this court. The state may not categorically prohibit truthful and non-deceptive mailed advertisements targeted at potential clients with specific legal problems; such advertising is constitutionally protected commercial speech, and may only be regulated by less restrictive and precise means. Such advertising poses far less risk of overreaching, undue influence or invasion of privacy than does in-person solicitation; a letter can be easily ignored or discarded by the recipient. Shapero v. Kentucky Bar Ass'n (1988) 486 U.S. 466, 100 L.Ed.2d 475, 108 S.Ct. 1916 (suggesting a more precise means of regulation would be to require the lawyer to file any solicitation letter with a state agency, giving the agency opportunity to supervise mailings and penalize actual abuses.)

Mass mailing of letters and informational pamphlets concerning legal aspects of debt problems sent to defendants in small claims and municipal court actions and owners of property in foreclosure violated former CRPC 2-101 (now this rule). The omission of certain facts tended to make the letters misleading, including the failure to clearly identify the letters as a communication for employment, and implying that clients would only need $60 to apply for "debt relief," without also disclosing that attorney fees would cost ten times more than that. Leoni v. State Bar (1985) 39 Cal.3d 609, 217 Cal.Rptr. 423, 704 P.2d 183.

Lecturing or Teaching

A lawyer contracted with a legal bureau that brought together parties interested in lecturing for profit on topics of law and legal reform; the bureau solicited publicity for lawyer's lectures using brochures, posters and flyers. There was no finding that the lawyer said or did anything in his lectures that solicited legal business. The court found that his lectures for compensation were legitimate exercise of free speech rights. Belli v. State Bar (1974) 10 Cal.3d 824, 830-832, 112 Cal.Rptr. 527, 519 P.2d 575.

Statements about Fees

The U.S. Supreme Court held that the State of Ohio's requirement that a lawyer advertising contingent fees must disclose that a client will be liable for costs even if the lawsuit were unsuccessful, was reasonable and not unduly burdensome. Zauderer v. Office of Disciplinary Counsel (1985) 471 U.S. 626, 85 L.Ed.2d 652, 105 S.Ct. 2265, 2282-2283, fn.14.

An advertisement stating that legal services were offered at "very reasonable prices" for an uncontested divorce was not inherently misleading, if the fees were within the low range of prices commonly charged in that geographic area. Bates v. State Bar of Arizona (1977) 433 U.S. 350, 382, 54 L.Ed.2d 810, 97 S.Ct. 2691. Where a mailing implied that clients would only need $60 to apply for "debt relief," but failed to also disclose that lawyer fees would cost $600.00, the advertisement was found to be misleading. Leoni v. State Bar (1985) 39 Cal.3d 609, 217 Cal.Rptr. 423, 704 P.2d 183.

Prohibition against Testimonials

A lawyer may not advertise that he has performed his services so well that his clients consequently praise him. Jacoby v. State Bar (1977) 19 Cal.3d 359, 138 Cal.Rptr. 77, 526 P.2d 1326 and Belli v. State Bar (1974) 10 Cal.3d 824, 837-838, 112 Cal.Rptr. 527, 519 P.2d 575 (both cases decided under former version of rule).

References

3 L.A. Lawyer 21 (June 1980) How advertising has revolutionized the practice of law.

30 ALR4th 742. Advertising as grounds for attorney discipline.

Ethics Opinions

C.O.P.R.A.C. Op. 93-129 (Implications of counsel designation on letterhead).

S.D. Op. 1992-3 (Personalized direct mail (jail mail) sent to an arrestee is not prohibited if it conforms to this rule).

C.O.P.R.A.C. Op. 1980-54 (Not improper to send unsolicited letters to potential business clients describing services offered by lawyer).

C.O.P.R.A.C. Op. 1985-86 (Ethical requirements regarding contacting clients after dissolution of law partnership).

S.D. Op. 1975-11 (Announcements of dissolution of law firm and of transfer of associate to new firm).

C.O.P.R.A.C. Op. 1988-1105; S.D. Op. 1992-3 (Targeted direct mail).

S.D. Op. 1973-4 (Biography of lawyer for sale of book).

7.2:300   Retaining Copy of Advertising Material

Primary California References: CRPC 1-400, B&PC 6159
Background References: ABA Model Rule 7.2(b), Other Jurisdictions
Commentary: ABA/BNA 81:401, Wolfram 14.2

B&PC 6159.1 requires a true and correct copy of any advertisement soliciting employment of legal services to be retained for one year by the person or member who pays for such advertisement. CRPC 1-400(F) further provides that a member shall retain for two years a true and correct copy or recording of any communication made by written or electronic media. In addition, the Rule requires that, upon request, the member shall make such copy or recording available to the State Bar and provide evidence to support any factual or objective claims contained in the communication.

7.2:400   Paying to Have Services Recommended

Primary California References: CRPC 1-320, 1-400, B&PC 6157, 6152, 6155
Background References: ABA Model Rule 7.2(c), Other Jurisdictions
Commentary: ABA/BNA 81.301, Wolfram 14.2

B&PC 6157.3 requires that any advertisement made on behalf of a member, which is not paid for by the member, shall disclose any business relationship between the member and the person paying for the advertisement. B&PC 6157.4 requires that any advertisement by a lawyer referral service disclose whether the attorneys on the service's referral list paid any consideration (other than a proportionate amount of actual cost) to be included on that list. [See 7.3:500 Solicitation by Pre-Paid and Group Legal Services Plans, infra]. See also B&PC 6152 prohibiting a lawyer's use of "runners or cappers" to solicit business for the attorney in or about prisons, jails, hospitals, courts and other public and private places.

CRPC 1-320(A)(4) permits a lawyer to pay prescribed registration, referral or participation fees to lawyer referral services that meet the California Minimum Standards for Lawyer Referral Services. B&PC 6155.

CRPC 1-320(B) prohibits a lawyer from compensating, giving or promising anything of value to a person for recommending employment of the lawyer or the lawyer's law firm. CRPC 1-320(B) further provides that a gift or gratuity given to a person providing a recommendation that resulted in the lawyer's employment shall not in itself violate the Rule so long as it was not given in consideration of an understanding that such gift or gratuity would be forthcoming or that referrals would be made in the future.

CRPC 1-320(C) prohibits a member from compensating, giving or promising anything of value to any representative of any communication media in anticipation of or in return for publicity for the member, the law firm or another member as such in a news item; however, incidental provision of food and beverages is not of itself a violation of the Rule. The CRPC 1-320 Official Discussion makes clear that the Rule is not intended to preclude compensation to the communications media in exchange for advertising of professional employment.

C.O.P.R.A.C. Op. 1995-143 determined that a lawyer could employ a "medical liaison" to make a presentation to a group of physicians. The presentation promoted the use of the lawyer by patients of the physicians. In this context, the lawyer would be subject to discipline if the presentation contravened CRPC 1-400 or the standards adopted by the State Bar pursuant to CRPC 1-400(E). Further, the lawyer could not allow the representative to represent that the physicians would receive anything in consideration for recommending the lawyer to patients.

7.2:500   Identification of a Responsible Lawyer

Primary California References:
Background References: ABA Model Rule 7.2(d), Other Jurisdictions
Commentary: ABA/BNA 81.201, 81:301, Wolfram 14.2

California does not have a rule comparable to MR 7.2(d).

7.3   Rule 7.3 Direct Contact with Prospective Client

7.3:100   Comparative Analysis of CA Rule

Primary California References: CRPC 1-400, 1-600, B&PC 6150-6159
Background References: ABA Model Rule 7.3, Other Jurisdictions
Commentary: Richard A. Zitrin & Carol M. Langford, Legal Ethics in the Practice of Law: Rules, Statutes and Comparisons 1995 (1995) 293

7.3:101      Model Rule Comparison

Unlike other states, California has not adopted MR 7.3. California addresses the subjects covered by MRs 7.1-7.5, lawyers' communication to the public about their services, in one rule, CRPC 1-400. CRPC 1-400 was adopted in 1988 and replaced former CRPC 2-101 (1975), former CRPC 2-103 (1975) and former CRPC 2-104 (1975). See CRPC 1-400.

Unlike MR 7.3, CRPC 1-400 expressly defines "communication" and "solicitation." Communication is defined as "any message or offer . . . concerning the availability for professional employment . . . directed to any former, present, or prospective client . . . ." CRPC 1-400(A). Solicitation is defined as in-person or telephone communication soliciting employment for pecuniary gain. See CRPC 1-400(B). Additionally, CRPC 1-400 includes in the definition of "solicitation," "communications by any means to a person known to be represented by counsel in the matter which is the subject of the communication." CRPC 1-400(B)(2)(b) (emphasis added). In contrast, MR 7.3(a) prohibits only in-person or live telephone contact. The California rule goes on to prohibit all "solicitation" of a prospective client where the lawyer has no family or prior professional relationship to the client. However, CRPC 1-400(C) acknowledges that despite CRPC 1-400, some solicitations are protected by the Constitutions of the United States and the State of California. See Ohralik v. Ohio State Bar Ass'n (1978) 436 U.S. 447, 56 L.Ed.2d 444, 98 S.Ct. 1925; In re Primus (1978) 436 U.S. 412, 56 L.Ed.2d 417, 98 S.Ct. 1893.

Under CRPC 1-400(E), the California State Bar promulgated sixteen standards that raise a rebuttable presumption of a violation of CRPC 1-400. The standards were not submitted for approval by the California Supreme Court. See Richard A. Zitrin & Carol M. Langford, Legal Ethics in the Practice of Law: Rules, Statutes and Comparisons 1995 (1995) 293. Among them, CRPC 1-400 Standard 3 prohibits any communication to potential clients who are in "such a physical, emotional or mental state that [they] would not be expected to exercise reasonable judgment as to the retention of counsel." MR 7.3(b)(2) does not set out specific examples but does prohibit a large category of conduct involving "coercion, duress or harassment." California includes the MR 7.3(b)(2) language in CRPC 1-400(D)(5) and adds a prohibition against intrusion, compulsion, intimidation, threats or vexatious conduct. Standard 5, like MR 7.3(c), requires an unsolicited communication by mail to bear the words "advertisement," "newsletter" or words of similar meaning.

B&PC 6150-6159 address advertising and communication, including lawyer referral services. B&PC 6151-6154 prohibit "runners" and "cappers," defined as "any person, firm, association or corporation acting for consideration . . . or . . . as an agent" to solicit business. B&PC 6152 prohibits solicitation; B&PC 6153 establishes penalties for improper solicitation; and B&PC 6154 renders void any employment contract obtained through illegal solicitation.

MR 7.3(d), which allows a lawyer to belong to a prepaid or group legal services plan that uses in-person or telephone contact to solicit memberships, does not have a California counterpart. B&PC 6155 and the Minimum Standards for a Lawyer Referral Service set out the requirements for operating a "referral service," but B&PC 6155 provides that a group or prepaid legal plan is not a referral service. CRPC 1-600 provides only that a lawyer shall not participate in group or prepaid service programs where a third person would interfere with the lawyer's independent judgment or with the lawyer-client relationship.

7.3:102      Model Code Comparison

Unlike CRPC 1-400, the Model Code does not specifically address in-person or telephone contact. DR 2-103 prohibits all recommendations for employment "to a layperson who has not sought [the lawyer's] advice regarding employment of a lawyer." DR 2-104 provides that, with certain exceptions, a lawyer who had advised a layperson to seek counsel could not represent that layperson as a result of the contact. These exceptions include the lawyer's close friends, relatives and former or present clients. Unlike the Model Code, CRPC 1-400 makes no mention of close friends. CRPC 1-400(C) allows solicitation to people with whom the lawyer has a family or prior professional relationship and solicitation that is protected by the Constitutions of the United States or the State of California, as long as that communication is not false, misleading or communicated in a way that is intrusive, coercive or harassing. See CRPC 1-400(D)(1)-(5).

DR 2-103 allows a lawyer to provide services through a group or prepaid legal services plan. For a discussion of California's treatment of lawyer referral services [see 7.3:101 Model Rule Comparison, supra].

7.3:200   Prohibition of For-Profit In-Person Solicitation

Primary California References: CRPC 1-400, B&PC 6151-6154, Lab. Code 139
Background References: ABA Model Rule 7.3(a), Other Jurisdictions
Commentary: ABA/BNA 81:2001, Wolfram 14.2.5

Several U.S. Supreme Court cases influenced the drafting of CRPC 1-400. In In re Primus (1978) 436 U.S. 412, 56 L.Ed.2d 417, 98 S.Ct. 1893, the Court held that a lawyer could offer the free services of the American Civil Liberties Union to women who had been sterilized or threatened with sterilization as a condition to receiving federal benefits. As long as the lawyer had not overreached, defrauded or otherwise abused the clients, the contact involved protected expression which the state could not constitutionally prohibit.

However, in Ohralik v. Ohio State Bar Ass'n (1978) 436 U.S. 447, 462, 56 L.Ed.2d 444, 98 S.Ct. 1925, the Court held that the possibility of overreaching, fraud, and undue influence when an attorney, as a professional trained in the art of persuasion, solicits an unsophisticated, injured or distressed person is such that in-person solicitation of employment for profit can be prohibited. In Ohralik, the Court noted that a lawyer may provide unsolicited legal advice, as long as the client is referred to an independent attorney for actual representation. Cf., Edenfield v. Fane (1993) 507 U.S. 761, 123 L.Ed.2d 543, 113 S.Ct. 1792 (holding that a state's ban on in-person solicitation of business by C.P.A.s is unconstitutional; unlike lawyers, C.P.A.s are not trained in the art of persuasion, their typical clients not vulnerable accident victims, but sophisticated business executives; invasion of privacy is not a significant concern; distinguished from concerns applied to attorney solicitation in In the Matter of Scapa and Brown (Review Dept. 1993) 2 Cal. State Bar Ct.Rptr. 635).

The California Supreme Court echoed Ohralik in Kitsis v. State Bar (1979) 23 Cal.3d 857, 153 Cal.Rptr. 836, 592 P.2d 323, holding that constitutional protections do not prevent California from prohibiting in-person solicitation. See also In re Arnoff (1978) 22 Cal.3d 740, 150 Cal.Rptr. 479, 586 P.2d 960. CRPC 1-400 incorporates the constitutional protections Ohralik and Primus afford lawyers' speech. CRPC 1-400 prohibits all in-person or telephone solicitation for pecuniary gain by lawyers or their agents, including communication by any means to a prospective client known to be represented in the matter addressed by the communication, unless the solicitation is protected by the Constitution of the United States or the Constitution of the State of California. See C.O.P.R.A.C. Op. 1988-105, L.A. Op. 1983-404 (interpreting former CRPC 2-101 (1975) (predecessor to CRPC 1-400)). In addition, solicitations must not be false or misleading, or involve intrusion, coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct.

In In re Arnoff, (1978) 22 Cal.3d 740, 150 Cal.Rptr. 479, 586 P.2d 960, the court upheld a lawyer's convictions under B&PC 6152 for using runners and cappers, stating that this conduct was not expression protected by the First Amendment. The illegal employment of runners and cappers has sustained the imposition of a wide range of disciplinary sanctions by the Supreme Court, from stayed suspension to actual disbarment in a few isolated aggravated instances. The period of actual suspension, for Respondents, has consistently been increased from 1992 to 1996, by the State Bar Court Review Department. See In the Matter of Scapa and Brown (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 635. In Scapa, an 18-month suspension was recommended for two attorneys who staffed a branch office exclusively with non-lawyers and employed two persons, including one retired police officer, who illegally obtained police accident reports, solicited accident victims over the telephone and in person, and induced potential clients to sign the attorneys' unconscionable fee agreement and to falsely swear in writing that they had not been solicited. In addition, an attorney cannot shield improper solicitation by procuring a written waiver from the client in the retainer agreement. See Ames v. State Bar (1973) 8 Cal.3d 910, 106 Cal.Rptr. 489, 506 P.2d 625; C.O.P.R.A.C. Op. 1988-105.

An attorney who solicited, personally and through an agent, clients in hospitals, at accident sites and in car repair shops could be disbarred. See Kitsis v. State Bar (1979) 23 Cal.3d 857, 153 Cal.Rptr. 836, 592 P.2d 323; In re Arnoff (1978) 22 Cal.3d 740, 150 Cal.Rptr. 479, 586 P.2d 960. Furthermore, an attorney's involvement with repeated acts of improper solicitation through third parties not only violates the solicitation rule, but may constitute an act of moral turpitude and corruption warranting stern discipline. See In the Matter of Nelson (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 178, 187 (attorney set up partnership with non-lawyer; his entire law practice over a 6-month period came from improper solicitation acts of the non-lawyer; 6-month suspension was imposed).

An attorney representing one claimant may contact others, including victims of separate but causally related accidents, for legitimate investigative purposes. The attorney is not barred from representing other victims, if requested to do so, but it is misconduct to solicit such employment directly. See Rose v. State Bar (1989) 49 Cal.3d 646, 655-659, 262 Cal.Rptr. 702, 779 P.2d 761 (attorney "stepped over the line separating legitimate investigation . . . from prohibited direct solicitation," by visiting helicopter crash victims in the hospital, telling them he was handling similar case on behalf of another victim, and pressuring them to pursue similar litigation, using him as their attorney).

In In re Brindle (5th Dist. 1979) 91 Cal.App.3d 660, 154 Cal.Rptr. 563, the court held that, under B&PC 6152, a public defender is not subject to the prohibitions of former CRPC 2-101 (1979) against solicitation. A public defender may make his services known, as long as the decision to consult with the public defender remains with the individual. Additionally, one ethics opinion concludes that a public defender may initiate contact with an accused even though the accused has not requested legal representation and the court has not yet considered the legal representation of the accused. See C.O.P.R.A.C. Op. 1977-42 (interpreting former CRPC 2-101 (1979) and former CRPC 2-104(A) (1975), predecessors to CRPC 1-400); B&PC 6152(d). Additionally, the State Bar has endorsed permitting lawyers to recommend themselves for employment to other members of the State Bar. See C.O.P.R.A.C. 1981-61 (interpreting former CRPC 2-101 (1975), predecessor to former CRPC 1-400).

The following excerpts are taken from Karpman & Margolis pages 15-16, 20 with certain conforming changes:

Unlike advertising, personal solicitation is generally not open to public scrutiny. It may involve invasion of privacy and the likelihood of overbearing persuasion. The possibility for overreaching, fraud, and undue influence when an attorney, as a professional trained in the art of persuasion, solicits an unsophisticated, injured or distressed person is such that in-person solicitation of employment for profit can be prohibited. Ohralik v. Ohio State Bar Association (1978) 436 U.S. 447, 462, 56 L.Ed.2d 444, 98 S.Ct. 1925 (the court emphasized that a lawyer may provide unsolicited legal advice, as long as the client is referred to an independent attorney for actual representation). Compare Edenfield v. Fane (1993) 507 U.S. 761, 123 L.Ed.2d 543, 113 S.Ct. 1792, holding that a state's ban on in-person solicitation of business by C.P.A.s is unconstitutional; unlike lawyers, C.P.A.s are not trained in the art of persuasion, their typical clients not vulnerable accident victims, but sophisticated business executives; invasion of privacy is not a significant concern; distinguished from concerns applied to lawyer solicitation in In the Matter of Scapa and Brown (Review Dept. 1993) 2 Cal. State Bar Ct.Rptr. 635.

A lawyer representing one claimant may contact others, including victims of separate but causally related accidents, for legitimate investigative purposes. The lawyer is not barred from representing other victims, if requested to do so, but it is misconduct to solicit such employment directly. Rose v. State Bar (1989) 49 Cal.3d 646, 655-659, 262 Cal.Rptr. 702, 779 P.2d 761 (lawyer "stepped over the line separating legitimate investigation . . . from prohibited direct solicitation" by visiting helicopter crash victims in the hospital, telling them he was handling similar case on behalf of another victim, and pressuring them to pursue similar litigation, using him as their lawyer).

Disbarment was warranted for a lawyer who solicited personally, and through third party "cappers," over 200 clients found in hospitals, accident sites, and car repair shops. Free speech guarantees do not prevent enforcement of California's rules prohibiting in-person solicitation. Kitsis v. State Bar (1979) 23 Cal.3d 857, 153 Cal.Rptr. 836, 592 P.2d 323; In re Arnoff (1978) 22 Cal.3d 740, 150 Cal.Rptr. 479, 586 P.2d 960.

A lawyer's involvement with repeated acts of improper solicitation through third parties not only violates the solicitation rule, but may constitute an act of moral turpitude and corruption warranting stern discipline. In the Matter of Nelson (Review Dept. 1990) 1 Cal. State Bar Ct.Rptr. 178, 187 (lawyer set up partnership with non-lawyer; his entire law practice over a 6-month period came from improper solicitation acts of the non-lawyer; 6-month suspension was imposed).

An 18-month suspension was recommended for two lawyers who staffed a branch office exclusively with non-lawyers and employed two persons, including one retired police officer, who illegally obtained police accident reports, solicited accident victims over the telephone and in person, and induced potential clients to sign the lawyers' unconscionable fee agreement and to falsely swear in writing that they had not been solicited. In the Matter of Scapa and Brown (Review Dept. 1993) 2 Cal. State Bar Ct.Rptr. 635.

However, in federal class actions, direct contact with potential members of the class is permitted and is not considered improper solicitation. Gulf Oil Company v. Bernard (1981) 452 U.S. 89, 99 and fn.11, 68 L.Ed.2d 693, 101 S.Ct. 2193; Atari, Inc. v. Superior Court (Carson) (6th Dist. 1985) 166 Cal.App.3d 867, 871, 212 Cal.Rptr. 773 (court allowed pre-certification communication by class action plaintiffs to potential class members, when trial court was given opportunity in advance to screen notice for improprieties.)

References

B&PC 6151-6154 (prohibition against runners and cappers); B&PC 6152 (prohibition of solicitation); B&PC 6153 (improper solicitation is a misdemeanor); B&PC 6154 (any contract of employment obtained through illegal solicitation is void); Lab. Code 139.45 (false and misleading advertisements with respect to workers' compensation).

13 Hastings Const. L.Q. 487. Scrutinizing lawyer advertising and solicitation rules under commercial speech and antitrust doctrine.

Schoor, Class Actions: The Right to Solicit (1976) 16 Santa Clara L.Rev. 215.

5 ALR4th 866. Modern status of law regarding solicitation of business by attorneys.

1 ALR4th 1164. Rights of lawyer leaving firm with respect to firm's clients.

Ethics Opinions

O.C. Op. 93-001 (issues where a lawyer sends a sympathy letter discussing fees, and foreseeability of recovery to a victim's family after reading a newspaper article about an accident).

C.O.P.R.A.C. Op. 1988-105 (lawyer may not shield improper solicitation from scrutiny by securing a written waiver of such conduct from the client).

C.O.P.R.A.C. Op. 1981-61 (propriety of lawyer seeking business from other lawyers by use of in-person solicitation or other direct communication).

C.O.P.R.A.C. Op. 1977-43 (public defender may ethically initiate contact with arrestee in order to determine whether that person is eligible for and desires representation by the office of the public defender). L.A. Op. 1983-404 (advertising, including solicitation through mail, is authorized as long as not false or misleading. Solicitation may be prohibited).

The following comments on B&PC 6151 "Runner"; "capper"; "agent" are taken from Karpman & Margolis page 254 with certain conforming changes:

The illegal employment of runners and cappers has sustained the imposition of a wide range of disciplinary sanction by the Supreme Court, from stayed suspension to actual disbarment in a few isolated, aggravated instances. The period of actual suspension, for Respondents, has consistently been increased during the last five years by the State Bar Court Review Department. See In the Matter of Scapa and Brown (Review Dept. 1993) 2 Cal. State Bar Ct.Rptr. 635.

7.3:210      Solicitation by Non-Profit Public Interest Organization

California has no comparable rule.

7.3:220      Solicitation of Firm Clients by a Departing Lawyer

California has no comparable rule.

7.3:300   Regulation of Written and Recorded Solicitation

Primary California References: CRPC 1-400
Background References: ABA Model Rule 7.3(b), Other Jurisdictions
Commentary: ABA/BNA 81:2001, Wolfram 14.2.5

In Shapero v. Kentucky Bar Ass'n (1988) 486 U.S. 466, 100 L.Ed.2d 475, 108 S.Ct. 1916, the U.S. Supreme Court distinguished between written communication and in-person solicitation, finding that direct mail solicitation does not involve "pressure on the potential client for an immediate yes-or-no answer to the offer of representation." Shapero v. Kentucky Bar Ass'n (1988) 486 U.S. 466, 100 L.Ed.2d 475, 108 S.Ct. 1916 (quoting Zauderer v. Office of Disciplinary Counsel of Supreme Court (1995) 471 U.S. 626, 642, 85 L.Ed.2d 652, 105 S.Ct. 2265)). In Shapero v. Kentucky Bar Ass'n (1988) 486 U.S. 466, 100 L.Ed.2d 475, 108 S.Ct. 1916, the court held that the First Amendment prevented the state from prohibiting truthful and nondeceptive letters to specific potential clients known to face a particular legal problem. Consistent with the limitations of Shapero v. Kentucky Bar Ass'n (1988) 486 U.S. 466, 100 L.Ed.2d 475, 108 S.Ct. 1916, both MR 7.3 and CRPC 1-400 prohibit the use of pressure, including duress, coercion and harassment in any communication soliciting employment. [See discussion of MR 7.3(b), CRPC 1-400(E) and Standard 3 in 7.3:101 Model Comparison, supra].

An Orange County Bar Association ethics opinion concluded that an attorney had violated Standard 3 by mailing a letter to the parents of a child who was seriously injured in a traffic accident. The attorney, who was not acquainted with the parents, had read about the accident in the newspaper. The letter expressed sympathy, suggested that a lawsuit against the city had good chances for success and stated that the lawyer would be available for a free consultation. The Committee concluded that the letter fell within the prohibitions of Standard 3, raising a rebuttable presumption of a violation of CRPC 1-400. The Committee noted that Shapero allowed the prohibition of communications that "'pose a serious danger . . . lawyers will exploit any [potential client's] susceptibility' to undue influence." The Committee asserted, therefore, that the prohibitions of Standard 3 were particularly appropriate, because the letter "had a significant potential to exert undue influence upon the parents' decision concerning the retention of legal counsel because of the emotional trauma inherent in the circumstances . . . ." O.C. Op. 93-001.

7.3:400   Disclaimers for Written and Recorded Solicitation

Primary California References: CRPC 1-400
Background References: ABA Model Rule 7.3(c), Other Jurisdictions
Commentary: ABA/BNA 81:401, Wolfram 14.2.5

CRPC 1-400(D)(4) requires that a communication or solicitation must not "[f]ail to indicate clearly, expressly, or by context, that it is a communication or solicitation, as the case may be." See also, S.D. Op. 1992-3 (targeted mailings to prospective clients must comply with CRPC 1-400(D)(4)); C.O.P.R.A.C. Op. 1995-144 (lawyer who directs investigator to interview witnesses to an accident must make sure that the investigator's communications with witnesses do not violate CRPC 1-400(D)(4)); cf., In re Morse (1995) 11 Cal.4th 184, 195, 44 Cal.Rptr.2d 620, 900 P.2d 1170 (advertisements to prospective clients that expressly stated 'PRIORITY ADVERSTISMENT' [sic] complied with CRPC 1-400(D)(4)).

7.3:500   Solicitation by Prepaid and Group Legal Services Plans

Primary California References:
Background References: ABA Model Rule 7.3(d), Other Jurisdictions
Commentary: ABA/BNA 81:2501, Wolfram 16.5.5

In California, solicitation by pre-paid and group legal service plans does not appear to be subject to any unique rules or standards. [See also, Rule 6.3 Membership in Legal Services Organization, supra, for a discussion of CRPC 1-600].

7.4   Rule 7.4 Communication of Fields of Practice

7.4:100   Comparative Analysis of CA Rule

Primary California References: CRPC 1-400
Background References: ABA Model Rule 7.4, Other Jurisdictions
Commentary:

7.4:101      Model Rule Comparison

Unlike other states, California has not adopted MR 7.4. California addresses the subjects covered by MRs 7.1-7.5, lawyers' communication to the public about their services, in one rule, CRPC 1-400. CRPC 1-400 was adopted in 1988 and replaced former CRPC 2-101 (1975), former CRPC 2-103 (1975) and former CRPC 2-104 (1975). See CRPC 1-400.

CRPC 1-400(D)(6) sets forth the parameters pursuant to which a lawyer may hold himself out as a "certified specialist." The MR automatically permit lawyers who have been admitted to engage in patent practice before the United States Patent and Trademark Office and lawyers who are engaged in Admiralty practice to call themselves specialists. In order to communicate to clients or potential clients that he is a "certified specialist," a California lawyer must (i) hold a current certificate as a specialist, issued by the Board of Legal Specialization or any other entity accredited by the State Bar to designate specialists pursuant to standards adopted by the Board of Governors and (ii) state the complete name of the entity which granted the certification. CRPC 1-400(D)(6). Similarly, MR 7.4 specifically provides that a lawyer may be certified as a specialist by any organization that is authorized by the state to grant such a certification, but MR 7.4 also provides that a lawyer may be certified by those organizations that have not yet been approved or even those that have been disapproved.

In Peel v. Attorney Registration and Disciplinary Commission of Illinois (1990) 496 U.S. 91, 110 L.Ed.2d 83, 110 S.Ct. 2281, the State of Illinois had no program for certifying specialists, and its disciplinary rule prohibited lawyers from using the term "specialist." Yet since the private organization that certified the attorney as a specialist used rigorously enforced standards for certification, the U.S. Supreme Court allowed the claim of specialty. "[A] claim of certification is not an unverifiable opinion of the ultimate quality of a lawyer's work or a promise of success, which could be misleading, but a verifiable fact that a consumer may or may not choose to consider." Karpman & Margolis pg. 18.

The details of a lawyer's specialization under California law (e.g., eligibility for recertification) are contained in the Rules Governing the State Bar of California Program for Certifying Legal Specialists.

7.4:102      Model Code Comparison

Like the MR, the DR permit lawyers who are members of the patent bar and lawyers who practice in the field of admiralty to call themselves specialists in those respective areas. In contrast, the California rules require that the communication state the complete name of the entity which granted the certification as a specialist.

DR 2-105(A) and EC 2-14 are substantially similar to MR 7.4. [See 7.4:101 Model Rule Comparison, supra for a comparison of California's treatment of certifications of specialization with the treatment by the MR].

7.4:200   Regulation of Claims of Certification and Specialization

Primary California References: CRPC 1-400, B&PC 6157
Background References: ABA Model Rule 7.4, Other Jurisdictions
Commentary: ABA/BNA 21:4001, 81:501, Wolfram 14.2.4

The following excerpts are taken from Karpman & Margolis pages 19-20 with certain conforming changes:

Representations of Specialties, Certifications, or Areas of Practice

The United States Supreme Court held that a Florida solo practitioner's inclusion of a statement that she was a CPA on her business card and yellow page and was commercially protected free speech. Ibanez v. Florida Department of Business and Professional Regulation, Board of Accountancy (1994) 512 U.S. 136, 129 L.Ed.2d 118, 114 S.Ct. 2084.

A lawyer placed notice of his certification by the National Board of Trial Advocacy on his letterhead. The Supreme Court upheld the lawyer's right to refer to certification; "a claim of certification is not an unverifiable opinion of the ultimate quality of a lawyer's work or a promise of success," which could be misleading, but a verifiable fact that a consumer may or may not choose to consider. Peel v. Attorney Registration and Disciplinary Commission of Illinois (1990) 496 U.S. 91, 110 L.Ed.2d 83, 95, 110 S.Ct. 2281.

Listing areas of practice is not misleading. In re R.M.J. (1982) 455 U.S. 191, 71 L.Ed.2d 64, 102 S.Ct. 929.

Members who hold themselves out to the public as having special qualifications or expertise may be held to the duty of care of other specialists in the same field. Wright v. Williams (2d Dist.1975) 47 Cal.App.3d 802, 810, 121 Cal.Rptr. 194.

A lawyer who took out newspaper advertisement stating he was "approved" as a Bankruptcy Trustee in federal court, was found to have engaged in misleading advertising, since the lawyer had never been appointed to a bankruptcy panel and had never served in that capacity. Standing Committee on Discipline of the U.S. District Court for the Southern District of California v. Ross (9th Cir. 1984) 735 F.2d 1168.

7.5   Rule 7.5 Firm Names and Letterheads

7.5:100   Comparative Analysis of CA Rule

Primary California References: CRPC 1-400, B&PC 6150-6154
Background References: ABA Model Rule 7.5, Other Jurisdictions
Commentary: Richard A. Zitrin & Carol M. Langford, Legal Ethics in the Practice of Law: Rules, Statutes and Comparisons 1995 (1995) 93

7.5:101      Model Rule Comparison

Unlike other states, California has not adopted MR 7.5. California addresses the subjects covered by MRs 7.1-7.5, lawyers' communication to the public about their services, in one rule, CRPC 1-400. CRPC 1-400 was adopted in 1988 and replaced former CRPC 2 (1975), former CRPC 2-101 (1975), former CRPC 2-103 (1975) and former CRPC 2-104 (1975). See former CRPC 1-400 (1975).

Under CRPC 1-400, the California State Bar promulgated 16 standards that raise a rebuttable presumption of a violation of CRPC 1-400. The standards were not submitted for approval by the California Supreme Court. See Richard A. Zitrin & Carol M. Langford, Legal Ethics in the Practice of Law: Rules, Statutes and Comparisons 1995 (1995) 93. CRPC 1-400, Standard (6), like MR 7.5(a), prohibits the use of a firm name or other professional designation which states or implies a connection with a government agency or instrumentality or a public or non-profit legal services organization. MR 7.5(c) addresses this issue further by specifically prohibiting the use of a lawyer's name who is holding public office "during any substantial period in which the lawyer is not actively and regularly practicing with the firm." CRPC 1-400 Standard (7), like MR 7.5(d), prohibits the use of a professional designation that implies a connection with a partnership or other organization unless such relationship in fact exists. CRPC 1-400 Standard (8), unlike MR 7.5, prohibits "communication which states or implies that a member or law firm is `of counsel'. . . unless the former has a relationship with the latter . . . which is close, personal, continuous, and regular." In addition, CRPC 1-400 Standard (9) prohibits the use of a professional designation which "differs materially from any other such designation used by such member or law firm at the same time in the same community." On the other hand, MR 7.5(b) does not have a California counterpart. MR 7.5(b) addresses the need to indicate the "jurisdictional limitations" of an attorney not licensed to practice in the jurisdiction where the office is located in the event that the law firm has offices in more than one jurisdiction. Finally, MR 7.5 is subject to the "false and misleading" standard applied in MR 7.1. The California counterpart to this rule is CRPC 1-400(D) which lists the prohibited characteristics of a communication or solicitation.

B&PC 6150-6154 address unlawful solicitation in the context of advertisement and communication.

7.5:102      Model Code Comparison

Like the MR, the Model Code addresses similar prohibitions on the use of firm names and other professional designations. DR 2-102(A) and DR 2-102(B) are similar to MR 7.5(a). DR 2-102(D) is similar to MR 7.5(b). DR 2-102(B) is similar to MR 7.5(c). DR 2-102(C) is substantially identical to MR 7.5(d). For a comparison of California's treatment of firm names and other professional designations with the treatment by the MR [see 7.5:101 Model Rule Comparison, supra].

A difference between the MR and the Model Code is demonstrated by DR 2-102(A)(4), which makes a specific comment about "of counsel" designations as addressed in CRPC 1-400, Standard (8).

7.5:200   Firm Names and Trade Names

Primary California References: CRPC 1-400, 1-300, B&PC 6132, 6133
Background References: ABA Model Rule 7.5(a), Other Jurisdictions
Commentary: ABA/BNA 81:3001, Wolfram 14.2.4

The name of a law firm is a "communication" within the meaning of CRPC 1-400. "It is a message concerning the availability for professional employment of an attorney or law firm." Karpman & Margolis p. 19. CRPC 1-400(A)(1), (2). CRPC 1-400(A)(1) refers to "communication" as any use of a firm name, trade name, fictitious name or other professional designations. CRPC 1-400(A)(2) refers to "communication" as any stationery, letterhead, business card, sign, brochure, or other comparable written material. CRPC 1-400(D) then lists the prohibitions on the use of these "communications." CRPC 1-400(E) adopts standards as to communications which will be presumed to violate CRPC 1-400, particularly in the use of firm names or other professional designations. See CRPC 1-400, Standards (6)-(9). [See also, 7.4:200 Regulation of Claims of Certification and Specialization, supra].

In In the Matter of Respondent V (Review Dept. 1995) 3 Cal. State Bar Ct.Rptr. 442, the use of the Great Seal of California on a lawyer's letterhead constituted a violation of CRPC 1-400; the court reasoned that the letterhead tended to confuse, deceive, or mislead, in that it implied that the lawyer was associated with, endorsed by, or represented the State of California.

See C.O.P.R.A.C. Op. 1997-150 (attorneys sharing space who use a firm name, trade name, fictitious name or other professional designation which states or implies that they have a professional relationship with one another such as associate, partner, officer, shareholder or "of counsel," when they do not, will be presumed to be in violation of CRPC 1-400 Standard (7) and CRPC 1-400, Standard (8)). L.A. Op. 73-332 (when a California firm lists on its letterhead an attorney who is not licensed to practice law in California, an appropriate disclosure must be made).

The following comments on B&PC 6132 Removal of name of disbarred attorney from law firm's business name are taken from Karpman & Margolis page 234 with certain conforming changes:

A law firm must remove the name of any lawyer of the firm who is disbarred or who has resigned from the practice of law, from its business name, letterhead, signs and advertisements. In addition, under B&PC 6133, any law firm that employs a disbarred, suspended or resigned lawyer is subject to discipline for not properly supervising the lawyer to ensure that he or she does not engage in the unauthorized practice of law.

See In the Matter of Miller (Review Dept. 1993) 2 Cal. State Bar Ct.Rptr. 423, 434-436, wherein the State Bar argued that a son's continued use of the firm name "Miller & Miller," after his father had resigned from the practice of law and worked in the office only as a paralegal, violated B&PC 6132, as well as the prohibition against false and deceptive communications and advertising (CRPC 1-400).

References

CRPC 1-300 (a lawyer shall not aid any person or entity in the unauthorized practice of law); CRPC 1-400(A), CRPC 1-400(A)(1), and CRPC 1-400(D)(2) (an advertisement, communication, or other solicitation by a lawyer or law firm shall not be misleading; a "communication" includes any message concerning the availability for professional employment by a lawyer or a law firm; the term "communication" includes the name of a law firm).

C.O.P.R.A.C. Op. 1986-90 (any communication, including use of law firm name, may be deceptive to the public if it identifies as partners the names of persons who are not partners actively engaged in the practice of law).

7.5:300   Law Firms with Offices in More Than One Jurisdiction

Primary California References: CRPC 1-400
Background References: ABA Model Rule 7.5(b), Other Jurisdictions
Commentary: ABA/BNA 81:3005, Wolfram 15.4

The CRPC does not specifically address MR 7.5(b). CRPC 1-400(D)(2) prohibits a communication or solicitation to "contain any matter, or present or arrange any matter in a manner or format which is false, deceptive, or which tends to confuse, deceive, or mislead the public." CRPC 1-400(D)(2). In addition, CRPC 1-400(D)(3) prohibits a communication or solicitation to "omit to state any fact necessary to make the statements made, in the light of circumstances under which they are made, not misleading to the public." CRPC 1-400(D)(3). There is no comparable California rule in Standards (6)-(9) pursuant to CRPC 1-400(E).

7.5:400   Use of the Name of a Public Official

Primary California References: CRPC 1-400
Background References: ABA Model Rule 7.5(c), Other Jurisdictions
Commentary: ABA/BNA 81:3001, Wolfram 14.2.4

CRPC does not specifically address MR 7.5(c). CRPC 1-400(D)(2) prohibits the use of a communication or solicitation to "contain any matter, or present or arrange any matter or format which is false, deceptive, or which tends to confuse, deceive, or mislead the public." CRPC 1-400(D)(2). There is no comparable California rule in Standards (6)-(9) pursuant to CRPC 1-400(E).

7.5:500   Misleading Designation as Partnership, etc.

Primary California References: CRPC 1-400
Background References: ABA Model Rule 7.5(d), Other Jurisdictions
Commentary: ABA/BNA 81:3001, ALI-LGL 79, Wolfram 14.2.4

In In the Matter of Miller (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 423, 435-36, continued use of the law firm name of Miller & Miller, when one of the partners had resigned from the practice of law, was considered to be a misleading communication within the meaning of CRPC 1-400. See C.O.P.R.A.C. Op. 1993-129 (implications involving "of counsel" designation on letterhead); C.O.P.R.A.C. 1986-90 (interpreting former CRPC 2-101 (1975) (predecessor to CRPC 1-400) which prohibits the use of a law firm name which includes the name of a former partner of the firm without identifying such person as a non-member); C.O.P.R.A.C. Op. 1971-27 (lawyers may not use a firm name which implies the existence of a partnership where none exists).