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Ethics Opinions from the Bar Association of San Francisco

OPINION 1979-1

An attorney who directs a mass mailing to income property owners in San Francisco concerning the availability of that attorney to provide legal services in unlawful detainer actions should not be subjected to disciplinary action for violation of Rule 2-101, California Rules of Professional Conduct. While communications of this nature could "tend to confuse, deceive, or mislead the public" in violation of Rule 2-101, or is otherwise conduct by attorneys which should not be encouraged, in this case, the subject communication appears to be not disciplinable.

QUESTION:

May an attorney be disciplined for announcing his availability in eviction cases through a mass mailing of the following communication, addressed by name to income property owners in San Francisco:

"Dear Income Property Owner:

"Undesirable tenants are a cause of great expense, and that expense grows when property owners put off eviction because of the dread of costly legal fees.

"By handling a volume of eviction cases, this firm is able to represent its clients in unlawful detainer actions with efficiency, yet for a very modest fee. In most cases that fee is only $150 plus court costs.

"There are several nonlawyer eviction services operating in the Bay Area that assist property owners in the handling of their own eviction cases; however, if a case is contested, these services cannot represent their clients in court and the property owners must either represent themselves or hire a lawyer at additional expense.

"We will provide you with total legal representation from the commencement of your case until the tenant is evicted. The service includes preparation, filing and service of all documents required, as well as two court appearances at the trial court level. Further, if you wish, this can all be done entirely by telephone and mail correspondence.

"We hope that you are one of the few fortunate income property owners that never has to evict a tenant, but if you are not, we look forward to being of assistance. Very truly yours,"

OPINION:

It is the opinion of a majority of the Committee that the communication is not one which is proscribed by rule 2-101 of the California Rules of Professional Conduct.

DISCUSSION:

Traditional rules prohibiting, or severely restricting the ability of an attorney to announce his availability to the general public have recently undergone and are continuing to undergo dramatic changes. To a large extent this is attributable to a number of recent decisions of the United States Supreme Court delineating the applicability of the First Amendment to the efforts of attorneys to solicit clients, through general advertising as well as more direct forms of solicitation. Although those decisions, and the newly adopted rule 2-101 of the Rules of Professional Conduct, do clarify some issues which were previously in doubt, a number of serious questions remain. Moreover, there is substantial disagreement among members of the Bar, and of this Committee, as to the appropriate resolution of those questions. For that reason, the Committee believes it appropriate to explore in some depth the issues raised by the specific inquiry.

Solicitation of professional employment is regulated by rule 2-101 of the Rules of Professional Conduct, which reads as follows:

"Rule 2-101. Professional Employment.

"This rule is adopted to foster and encourage the free flow of truthful and responsible information to assist the public in recognizing legal problems and in making informed choices of legal counsel.

"Accordingly, a member of the State Bar may seek professional employment from a former, present or potential client by any means consistent with these rules.

"(A) A 'communication' is a message concerning the availability of professional employment of a member or a member's firm. A 'communication' made by or on behalf of a member shall not:

"(1) Contain any untrue statement; or

"(2) 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; or

"(3) Omit to state any fact necessary to make the statements made, in the light of the circumstances under which they are made, not misleading to the public; or

"(4) Fail to indicate clearly, expressly or by context, that it is a "communication"; or

"(5) State that a member is a certified specialist unless the member holds a current certificate as a specialist issued by the California Board of Legal Specialization pursuant to a plan for specialization approved by the Supreme Court; or

"(6) Be transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats or vexation or harassing conduct.

"(B) No solicitation or 'communication' seeking professional employment from a potential client for pecuniary gain shall be delivered by a member or a member's agent in person or by telephone to the potential client, nor shall a solicitation or 'communication' specifically directed to a particular potential client regarding that potential client's particular case or matter and seeking professional employment for pecuniary gain be delivered by any other means, unless the solicitation or 'communication' is protected from abridgment by the Constitution of the United States or by the Constitution of the State of California. A potential client includes a former or present client.

"Notwithstanding the foregoing, nothing in this subdivision (B) shall limit or negate the continuing professional duties of a member or a member's firm to former or present clients, or a member's right to respond to inquiries from potential clients.

"(C) A member or a member's firm shall not solicit or accept professional employment offered or obtained through the acts of an agent, runner or capper, which acts would be in violation of law, or which, if performed by a member of the State Bar, would be in violation of subdivisions (A) or (B) of this rule 2-101.

"(D) The Board of Governors of the State Bar shall formulate and adopt standards as to what 'communication' will be presumed to violate subdivisions (A) or (B) of this rule 2-101. The standards shall have effect exclusively in disciplinary proceedings involving alleged violations of these rules as presumptions affecting the burden of proof. 'Presumptions affecting the burden of proof' means that presumption defined in Evidence Code sections 605 and 606. The standard formulated and adopted by the Board, as from time to time amended, shall be effective and binding on members of the State Bar.

"(E) The member shall retain for one year a true and correct copy or recording of any 'communication' made by written or electronic media pertaining to the member or the member's firm. Upon written request, the member or the member's firm shall make any such copy or recording available to the State Bar, and, if requested, shall provide to the State Bar the evidence of the facts upon which any factual or objective claims contained in the "communication" are based."

Because this recently adopted rule was, in large measure, a response to decisions of the United States Supreme Court, a discussion of those decisions will be helpful in interpreting the meaning of specific provisions of the rule, and applying it in particular cases. In substance, those decisions represent an effort on the part of the Court to balance (1) the interests of the State in regulating solicitation of business by attorneys, (2) the interest of the attorney in making known his availability to perform legal services, and (3) the interest of the public in receiving information concerning the availability of legal services.

The First Amendment right of the public to receive information was established in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976) 425 U.S. 748, a case which also held the First Amendment applicable to solely commercial speech. In Virginia Pharmacy, the Court emphasized the vital interest of the consumer and society in general in an unrestricted flow of commercial information. Despite its emphasis on consumer interest, Virginia Pharmacy left open the question of the applicability of the commercial speech doctrine to advertising by attorneys. That question was resolved in Bates v. State Bar of Arizona 433 U.S. 350 (1977), the first of three Supreme Court cases dealing with advertising and solicitation by attorneys.

In Bates , the attorneys in question placed an advertisement in a newspaper of general circulation, stating that their legal clinic provided "legal services at very reasonable fees," identifying five legal services and quoting a specific price for each. Those services were (1) uncontested divorce or legal separation, (2) preparation of court papers and instructions to the lay person on how to do his/her own uncontested divorce, (3) uncontested adoptions, (4) uncontested, nonbusiness bankruptcies, and (5) change of name proceedings. The Court held that the State of Arizona may not prevent the publication in a newspaper of an attorney's truthful advertisement concerning the availability and terms of these "routine" legal services. As stated by the Court, "We rule simply that the flow of such information may not be restrained, and we therefore hold the present application of the disciplinary rule 2-101(B) of the Code of Professional Responsibility against appellants to be violative of the First Amendment." Id., 433 U.S. at 384.

Although the Court did not define what constituted "routine services", it rejected the contention of the dissenters that the myriad of problems involved in any divorce proceeding preclude its classification as routine. The Court also rejected the contention of the dissenters that price advertising is misleading per se because the exact services that are included in an advertising package may not be clearly understood. After pointing out that the bar retains the power to define the services which must be included in an advertising package, the Court went on to say:

We recognize that an occasional client might fail to appreciate the complexity of his legal problem and will visit an attorney in the mistaken belief that his difficulty can be handled at the advertised price. The misunderstanding, however, usually will be exposed at the initial consultation, and an ethical attorney would impose, at the most, a minimal consultation charge or no charge at all for the discussion. If the client decides to have work performed, a fee could be negotiated in the normal manner. The client is thus in largely the same position as he would be if there were no advertising. In light of the benefits of advertising to those whose problem can be resolved at the advertised price, suppression is not warranted on account of the occasional client who misperceives his legal difficulties.

Id., 433 U.S. at 373, n. 28. Thus, although not defining what constitutes "routine" services, the Court made it clear that occasional misunderstandings by readers of an advertisement is no justification for discipline of the advertising attorney. The Court also stated that advertising which is false, deceptive or misleading is clearly subject to discipline. Id., 433 U.S. at 383. Left open by the decision was the applicability of the First Amendment to more direct forms of client solicitation.

The Court dealt with this latter issue in two contexts, when it decided in In re Primus (1978) 436 U.S. 412, and Ohralik v. Ohio State Bar Association (1978) 436 U.S. 447. Ohralik presented the problem of permissible scope of state regulation of in-person solicitation of clients. There, the attorney learned of an automobile accident in which two young women were injured. He visited one of the women at her hospital room and her home and visited the other at her home. After some persuasion, both of the women agreed to retain the attorney but later told him that they did not wish to be represented by him. The attorney insisted that he had a binding agreement with the two women, one of whom had paid him one-third of her recovery from her settlement with the insurance company, in settlement of the attorney's suit for breech of contract. The Ohio Supreme Court's indefinite suspension of the attorney was upheld by the United States Supreme Court, which rejected his contention that his conduct was protected by the First Amendment.

Although the Court agreed that Ohralik's conduct apprised prospective clients of the availability of legal services, and in that sense was similar to Bates, the Court rejected Ohralik's contention that his solicitation could not be prohibited absent a showing of an actual specific harm resulting from the speech. In so doing, the Court emphasized two things. First, the Court considered it important that, unlike the advertisement in Bates' which left the reader free to act or not, in-person solicitation was likely to provide a one-sided presentation and to encourage speedy and perhaps uninformed decision making.

The admonition that "the fitting remedy for evil counsel is good ones" is of little value when the circumstances provide no opportunity for any remedy at all. In-person solicitation is as likely as not to discourage persons needing counsel from engaging in a critical comparison of the "availability, nature and prices" of legal services ....

Id., 436 U.S. at 457-58. Second, the Court emphasized the prophylactic nature of a prohibition against in-person solicitation, pointing out that

The efficacy of the State's effort to prevent such harm to prospective clients would be substantially diminished if, having proved a solicitation in circumstances like those of, this case, the State were required in addition to prove actual injury. Unlike the advertising in Bates , in-person solicitation is not visible or otherwise open to public scrutiny.

Id., 436 U.S. at 460. Finding that Ohralik's conduct under the circumstances presented significant possibilities for overreaching, the Court held that the application of the appropriate disciplinary rule to his conduct did not offend the constitution.

Primus , decided the same day as Ohralik , presented the problem of client solicitation in a different context. Ms. Primus, a volunteer attorney for the American Civil Liberties Union, attended a meeting of welfare mothers called because of the policy of the State of South Carolina threatening a cutoff of Medicaid benefits to women who refused sterilization. At the meeting, Ms. Primus advised the women of their legal rights and suggested the possibility of a lawsuit. Subsequently, she wrote to one of the women who attended the meeting specifically requesting permission to file a lawsuit on the woman's behalf. The letter eventually found its way to the South Carolina Board of Commissioners on Grievances and Discipline, which instituted disciplinary proceedings against Primus. As a result of the letter, Primus was publicly reprimanded by the Supreme Court of South Carolina. In overturning that decision the Supreme Court distinguished Ohralik in the following language:

Unlike the situation in Ohralik, however, appellant's act of solicitation took the form of a letter to a woman with whom appellant had discussed the possibility of seeking redress for an allegedly unconstitutional sterilization. This was not in-person solicitation for pecuniary gain.And her acts were undertaken to express personal political beliefs and to advance the civil liberties objectives of the ACLU, rather than to derive financial gain.

Id., 436 U.S. at 422. The Court viewed the action of the State under these circumstances as interfering with the collective activity undertaken to obtain meaningful access to the Court, citing N.A.A.C.P. v. Button, 371 U.S. 415 (1963); Railroad Trainmen v. Virginia Bar, 377 U.S. 1 (1964); Mineworkers v. Illinois Bar Association , 389 U.S. 217 (1967); and United Transportation Union v. Michigan Bar, 401 U.S. 576 (1971).

Despite the fact that much of the discussion of the effect of Bates, Ohralik , and Primus has been phrased in terms of "advertising" as opposed to "solicitation", neither the Court nor the commentators have been entirely clear in distinguishing between the two. As one commentator noted, "the courts have been reluctant to define solicitation, which is a broad term that could be construed to include many practices." Note, Advertising, Solicitation and Legal Ethics, 7 Vanderbilt L. Rev. 677, 684 (1954).

Historically, advertising and solicitation have not always been distinguished. For example, in the Canons of Professional Ethics, the predecessor to the current American Bar Association Code of Professional Responsibility, Canon 27 dealt with the problem of soliciting directly or indirectly and essentially lumped both together, stating, "It is unprofessional to solicit professional employment by circulars, advertisements, through touters or by personal communications or interviews not warranted by personal relations." Canon 28 held it unprofessional to seek out potential plaintiffs having specific claims, largely on the ground that it is improper to stir up litigation.

Whether by "advertising" or by "solicitation", the attorney is attempting to secure legal business. What Bates , Ohralik , and Primus suggest is that the relevant distinctions are two: First, if the solicitation is "misleading, overbearing, or involves other features of deception or improper influence" ( In re Primus , 98 S.Ct. at 1908), the State can legitimately proscribe it. Second, if the circumstances of the contact between attorney and client are likely to result in these evils, then the State may proscribe such conduct even in the absence of any proof that the evil actually occurred in the particular case.

It is the view of the majority of the Committee that the conduct here in question-the direct mail solicitation of potential clients not involving a discreet legal matter-is not the type of conduct that may be proscribed by a prophylactic rule, applicable regardless of whether any actual harm may be proved. In addition to the language used by the Court in Ohralik, cited above at pages 7 and 8, the Court emphasized throughout the opinion the peculiar potential for harm posed by in-person solicitation:

The solicitation of business by a lawyer through direct, in-person communication with the prospective client has long been viewed as inconsistent with the profession's ideal of the attorney-client relationship and as posing a significant potential for harm to the prospective client.

Ohralik supra 436 U.S. at 454.

The entitlement of in-person solicitation of clients to the protection of the First Amendment differs from that of the kind of advertising approved in Bates as does the strength of the State's countervailing interest in prohibition.

Id., 436 U.S. at 455.

The Rules were applied in this case to discipline a lawyer for soliciting employment for pecuniary gain under circumstances likely to result in the adverse consequences the State seeks to avert . In such a situation, which is inherently conducive to overreaching and other forms of misconduct, the State has a strong interest in adopting and enforcing rules of conduct designed to protect the public from harmful solicitation by lawyers whom it has licensed.

The detrimental aspects of face to face selling of even ordinary consumer products have been recognized and addressed by the Federal Trade Commission and it hardly need be said that the potential for overreaching is significantly greater when a lawyer, a professional trained in the art of persuasion, personally solicits an unsophisticated, injured or distressed lay person.

Id., 436 U.S. at 464-65. And, as the Court noted in Primus , 436 U.S. at 435-36,

Moreover, the fact that there was a written communication lessens substantially the difficulty of policing solicitation practices that do offend valid rules of professional conduct.... The manner of solicitation in this case (a letter from the attorney to the prospective client) certainly was no more likely to cause harmful consequences than the activity considered in [NAACP v. ] Button .

In light of this language, a majority of the Committee believes that the communication in question is not one which is "transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct." Cal. Rules of Professional Conduct, 2-10l(A)(6). Nor is it one which "tends to confuse, deceive or mislead the public; or [is one which] omit[s] to state any fact necessary to make the statements made, in the light of the circumstances under which they are made, not misleading to the public." Rule 2-101(A)(2), (3). The majority, recognizing the difference between the services here and in Bates , believes that the communication in question is no more misleading than the communication in Bates , in which similar concerns about misleading advertising were raised and rejected by a majority of the Court.

The introductory paragraph of Rule 2-101 states, "This rule is adopted to foster and encourage the free flow of truthful and responsible information to assist the public in recognizing legal problems and making informed choices of legal counsel." Consistent with that expression of intent, the Committee believes it important that the information presented, whatever its nature, be as clear and responsible as the nature of the medium allows. Plainly this means that attorneys, in disseminating information about the services they are willing to render, have an obligation to do more than just avoid the most obvious kinds of misleading statements. Consequently, this opinion should not be taken as the Committee's "approval" of the communication in question, but rather as an opinion of the majority of the Committee that it does not plainly violate Rule 2-101 and, hence, is not one for which the attorney should be subjected to discipline.

A substantial minority of this committee disagrees with this conclusion. While several grounds for disagreement have been raised, the two principal minority views were: (1) that the questioned conduct here should subject the lawyer to disciplinary action under Rule 2-101; and/or, (2) that while the conduct is not disciplinable under Rule 2-101, it is ethically improper and should vigorously be discouraged.

The issue of whether direct mail solicitations for pecuniary gain by attorneys constitutes the type of conduct which may be regulated by the state is still open. Indeed, the Supreme Court in In Re Primus expressly declined to consider whether the attorney could have been disciplined if she had an interest in fees to be generated from the litigation. The Court stated, "We express no opinion whether our analysis in this case would be different had the latter policy [an expectation of fees] been in effect during the period in question." 436,U.S. at 430, 34.

The fact that the solicitation comes in written form diminishes only slightly those overriding public considerations that justify the regulation of attorneys' pursuit of professional business. The courts have long established precedent to protect the public from unsolicited mailed printed matter which may be unwelcome or offensive to some members of the public. See generally, Roth v. U.S., 354 U.S. 476 (1957). A mailed letter on an attorney's stationery may be distinguished from a radio or television or newspaper advertisement. An attorney's letterhead commands attention when received in the mail by a lay person. It ordinarily will not be overlooked like a newspaper advertisement. Nor can the reader "effectively avoid further bombardment of [his] sensibilities simply by averting [his] eyes." Cohen v. California, 403 U.S. 15, 21 (1971), quoted in footnote 25, Ohralik v. Ohio State Bar, supra. Because of the possible concerns it evokes, a letter on an attorney's letterhead is unlikely to be thrown away without being opened.

A sizeable minority has concluded that the mass mailing here constitutes a direct solicitation of legal business for pecuniary gain and thus may subject the author to discipline for violation of Rule 2-101. In addition, a sizeable minority believes that the communication is one which "tends to confuse, deceive or mislead the public; or is one which omits to state any fact necessary to make the statements made, in the light of the circumstances under which they are made, not misleading to the public" under Rule 2-101(A)(2)(3). There is no question but that any advertisement involves some measure of selection, summarization and presentation of facts which apply to the particular situation. The question is one of degree-at some point the failure to qualify the representations may well run afoul of sections (A)(2) or (A)(3). For example, this view holds that the failure to qualify such statements as "in most cases that fee is only $150," and "we will provide you with total legal representation" constitutes a violation of (A)(2), (A)(3), or both.

Whether a member of the bar may be disciplined for conduct or not, our deliberations deal with questions of "what ought to be." The Committee considers questions of professional etiquette and propriety, as well as questions of discipline. Accordingly, the application of ethical considerations to fact situations is less legalistic than in disciplinary matters and is more concerned with the application of the abstract principles which are utilized by lawyers in maintaining professional integrity.

Evaluated in this light, the view of many Committee members is that the solicitation under scrutiny represents a type of conduct in which attorneys should not engage whether they may be disciplined or not. "(T)he rules are based in part on deeply ingrained feelings of tradition, honor and service. Lawyers have for centuries emphasized that the promotion of justice, rather than the earning of fees, is the goal of the profession." Ohralik v. Ohio State Bar, supra 436 U.S. at 460, quoting from Comment, A Critical Analysis of Rules Against Solicitation by Lawyers, 25 U. Chi. L. Rev. 674 (1958).

As mentioned earlier, the majority conclusions reflected in this opinion should not be construed as this Committee's approval of the type of conduct questioned. On each of the individual issues discussed above, the members of the Committee concluding that a particular aspect of the letter was or was not permissible varied. The conclusion of the opinion was supported by a narrow majority, and members of the bar should consider the conclusion as limited to an opinion that the attorney in question should not be subjected to discipline.

 

All opinions of the Committee are subject to the following disclaimer:
Opinions rendered by the Ethics Committee are an uncompensated service of The Bar Association of San Francisco. Opinions are advisory only, and no liability whatsoever is assumed by the Committee or The Bar Association of San Francisco in rendering such opinions, and the opinions are relied upon at the risk of the user thereof. Opinions of the Committee are not binding in any manner upon the State Bar of California, the Board of Governors, any disciplinary committee, The Bar Association of San Francisco, or the individual members of the Ethics Committee.

In using these opinions you should be aware that subsequent judicial opinions and revised rules of professional conduct may have dealt with the areas covered by these ethics opinions.

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