Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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May an attorney, by letter or in person, ethically solicit business from another attorney by recommending himself or herself for professional employment? May the attorney do so when the recommendation of employment is made to an attorney who is employed full-time as legal counsel to a business not engaged in the delivery of legal services, and when the purpose of the recommendation is to obtain the business es a client for the recommending attorney?
Rule 2-101(B) of the Rules of Professional Conduct does not prohibit a recommendation of employment by one attorney to another attorney. An attorney may ethically recommend his or her employment to another attorney, even when the latter is employed as legal counsel to a business and the purpose of the solicitation is to secure that business as a client.
Rule 2-101 of the Rules of Professional Conduct of the State Bar.
The standard governing professional employment of lawyers in California is rule 2-101 of the Rules of Professional Conduct. It 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 for 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 vexatious 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 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.
"1(D) The Board of Governors of the State Bar shall formulate and adopt standards as to what'communications' 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. 'Presumption affecting the burden of proof' means that presumption defined in Evidence Code sections 605 and 606. The standards 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. (Adopted by order of Supreme Court, effective April 1, 1979.)"
Present rule 2-101 of the Rules of Professional Conduct was adopted by the California Supreme Court in response to Bates v. State Bar of Arizona (1977) 433 U.S. 350 [97 S.Ct. 2691] and in recognition that speech which is purely commercial has certain constitutional protections. Purely commercial speech is speech which does no more than propose a commercial transaction. See "Report and Recommendations of the Board Committee on Professional Responsibility," April 1978. (This report contains recommendations submitted to the Board of Governors of the State Bar when it was considering the form of new rule 2-101 of the Rules of Professional Conduct, which the Board would propose to the Supreme Court. The report serves as part of the legislative history of this rule. In this opinion, the report will be referred to as the "Report and Recommendations.")
The Board's report does not expressly state whether attorneys' communications with each other are subject to the regulation and prohibitions set forth in rule 2-101 of the Rules of Professional Conduct. (See Report and Recommendations, supra, at pp. 22-25.) The Committee has also found no relevant case authority expressly discussing these issues. They appear to be issues of first impression, and the Committee has analyzed them in accordance with constitutional principles and public policy rationale relating to the regulation of attorney advertising and solicitation.
In discussing how courts would evaluate the restrictions on commercial speech in proposed rule 2-101 of the Rules of Professional Conduct, the Board Committee on Professional Responsibility (hereinafter "Board Committee") believed that, because these restrictions do not apply to all speakers equally, and because they do apply to the content and nature of speech, courts would strictly scrutinize the regulations. Based upon the authorities reviewed, the Board Committee believed the courts would try to determine if the restrictions in the rule reasonably serve a significant governmental interest and if ample alternative channels for communication of the information are available. In doing this, the Board Committee believed that the courts would apply a balancing test to balance all the interests. (Report and Recommendations, p. 7.) In discussing the interests that the courts would balance, the Board Committee stated as follows:
"In the area of lawyer advertising, the public interest in favor of regulation is the prevention of demonstrated harm to the public. The interests opposing regulation are the rights of consumers to receive the maximum of information regarding the availability and terms of legal services and the rights of lawyers to disseminate that information." (Report and Recommendations, supra, p. 9.)
In discussing the preamble of the rule, which makes a clear policy statement in support of the free flow of information, including advertising, the Board Committee made it clear that it wished to prohibit situations which:
"... by their very nature, subject the public to risks of invasion of privacy, high pressure salesmanship, undue influence, overreaching, misleading and deceptive practices, divided loyalties, inadequate representation and other breaches of fiduciary duties." (Report and Recommendations, supra, p. 9.)
In re Primus (1978) 436 U.S. 412 [98 S.Ct. 1893] and Ohralik v. Ohio State Bar Association (1978) 436 U.S. 447 [98 S.Ct.1912] dealt with different aspects of the solicitation problem. In re Primus permitted an American Civil Liberties Union attorney to write a letter containing advice of legal rights to a woman who had been sterilized as a condition of receiving public medical assistance. Ohralik disciplined an attorney for soliciting representation of an 18-year-old woman while she was in the hospital after an accident. Neither of these cases had before them what Justice Marshall, in his concurring opinion in Ohralik, supra, 436 U.S. at page 472, called "commercial, but otherwise benign" solicitation of clients by an attorney. Justice Marshall defined benign commercial solicitation as follows:
"I mean solicitation by advice and information that is truthful, and that is presented in a noncoercive, nondeceitful and dignified manner to a potential client who is emotionally and physically capable of making a rational decision either to accept or reject the representation with respect to a legal claim or matter that is not frivolous." (Ohralik, supra, 436 U.S. at p. 472, fn. 3.)
Rule 2-101(B) of the Rules of Professional Conduct, and its background, make clear that the interest the rule protects is that of the public. Justice Burger, in his concurrence and dissent in Bates v. State Bar of Arizona, supra, made it clear that the focus of the question of lawyer advertising is in the protection of the general public:
"... I fear that they will be injurious to those whom the ban on legal advertising was designed to protect--the members of the general public in need of legal services." (Bates, supra, 433 U.S. at p. 386.)
Justice Powell, speaking for the Court in Ohralik v. Ohio State Bar Association, supra, focused on the protection which must be provided when:
"... a lawyer, a professional trained in the art of persuasion, personally solicits an unsophisticated, injured, or distressed layperson." (Ohralik, supra, 436 U.S. at p. 465.)
Recently the United States Supreme Court, in In re R.M.J. (1982) ___ U.S. ___ [102 S.Ct. 929] reiterated constitutional principles applicable to regulation of commercial speech in the form of advertising for professional services, as follows:
1. Advertising for professional services presents special possibilities for deception because of (a) the public's comparative lack of knowledge; (b) the limited ability of the professions to police themselves; and (c) the absence of any standardization in the "product". (Slip opinion, at p. 10.)
2. Advertising for professional services may be regulated (a) where particular advertising is inherently likely to deceive or (b) where a particular form or method of advertising has in fact been deceptive. (Slip opinion, at p. 11.)
3. In-person solicitation may be prohibited because of the likelihood of fraud, undue influence, intimitation, overreaching and other forms of vexatious conduct. (Slip opinion, at p. 11.)
4. Restrictions upon advertising professional services may be no broader than reasonably necessary to prevent the deception.
5. When a communication is not misleading, the state retains some authority to regulate it. The state must, however, assert a substantial interest in the regulation. Any interference with speech must be in proportion to the interest served. (Slip opinion, at p. 11.)
Guided by the foregoing principles, the Committee proceeded in its analysis of the specific questions posed.
A. May Attorney A recommend himself or herself for professional employment to Attorney B by means of an in-person or any other communication, when the purpose of the recommendation is to obtain B's client as the client of A?
First, if A's communication is considered an advertisement, there appears to be no substantial interest in prohibiting such a communication. A's communication to B concerning his or her availability to perform legal services is not inherently likely to deceive B or involve intrusion, coercion, duress, compulsion, intimidation, threats or vexatious conduct. (See rule 2-101(A) (1)-(3), (6), Rules Prof. Conduct.) If A's communications to B are false, misleading, or deceptive, they may subject A to discipline. (See rule 2-101(A)(1)-(3), Rules Prof. Conduct.)
An attorney is presumed to have superior knowledge and informed access to written authorities and to other members of the bar to evaluate recommendations of employment of other attorneys. Accordingly, it is difficult to find a demonstrated harm which would allow curtailment of the right, which a lawyer shares with all other citizens, to disseminate purely commercial information, subject to the limitations of rule 2-101(A) of the Rules of Professional Conduct.
Such communications are also not prohibited solicitations within the meaning of rule 2-101(B). The "communication seeking professional employment from a potential client" is not delivered in person to the client, but to the client's attorney, B. A's communication to B will not necessarily ever be communicated to B's client. Even where B delivers any form of A's communication to the client, B's communication is as the client's agent, not A's.2 Thus, rule 2-101(B) of the Rules of Professional Conduct does not necessarily prohibit such communications.
Moreover, there are substantial benefits in promoting the freest flow of information between attorneys concerning their availability for professional employment. Rule 6-101 of the Rules of Professional Conduct requires an attorney to perform only those legal services the member may competently handle, unless the member associates or professionally consults another lawyer who is competent to handle the matter. When a lawyer lacks the expertise to handle a client's legal matter, the client reasonably expects that the lawyer will refer him or her to a lawyer with requisite expertise. When a lawyer determines that he or she should associate or professionally consult with another lawyer with greater expertise in a particular matter, the member must have information concerning therelevant expertise of other lawyers. Direct, in-person communication between lawyers is the most efficient and effective method to acquire information to assist a member in making an informed choice of the best counsel to associate or consult professionally. It likewise assists members of the bar in making referrals of clients to competent counsel.3
In particular facts and circumstances, abuses can be redressed by enforcement of the Rules of Professional Conduct and the State Bar Act.
B. May attorney A seek professional employment for pecuniary gain by means of an in-person solicitation or other direct comunication of attorney B, where B is the potential client?
The traditional abuses suffered by laypersons who have been subjected to in-person solicitation by lawyers or their agents are fraud, undue influence, intimidation, overreaching, and other forms of vexatious conduct. Members of the bar have training and knowledge about the law, legal institutions and the legal profession. They have access to written authorities and advice of their colleagues to assist them in the evaluation of communications by or on behalf of other lawyers. Lawyers, unlike lay persons, are unlikely victims of traditional abuses by in-person solicitation. For these reasons, the rationale supporting an absolute prohibition are not applicable to in-person solicitations between lawyers.
In particular circumstances, abuses can be regulated by appropriate means without restricting the free flow of communication between lawyer colleagues.
We conclude that members of the State Bar are permitted to communicate freely with each other regarding their availability to provide legal services, subject to applicable law and the provisions of rule 2-101 of the Rules of Professional Conduct which govern the manner in which communications may be made. Those who object to such commercial behavior on the part of the members of the State Bar are referred to the six principal arguments against such commercial activity which were overruled in the opinion in Bates v. State Bar of Arizona, supra, 433 U.S., commencing at page 368.
Accordingly, it is the conclusion of the Committee that rule 2-101 of the Rules of Professional Conduct does not prohibit a member of the State Bar from recommending himself or herself for employment to another member of the State Bar.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
1 "Pursuant to rule 2-101(D) the Board of Governors of the State Bar has adopted the following standards, effective May 25, 1979.
"(1) A 'communication' which contains guarantees, warranties or predictions regarding the result of legal action is presumed to violate rule 2-101, Rules of Professional Conduct.
"(2) A 'communication' which contains testimonials about or endorsements of a member is presumed to violate rule 2-101, Rules of Professional Conduct.
"(3) A 'communication' which is delivered in person or by telephone 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 judgment as to the retention of counsel, is presumed to violate rule 2-101, Rules of Professional Conduct.
"(4) A 'communication' which is transmitted at the scene of an accident or at or en route to a hospital, emergency care or other health care facility is presumed to violate rule 2-101, Rules of Professional Conduct."
2 Of course, where B's communication to the client is as A's agent, several professional standards are potentially breached; including, but not limited to, Business and Professions Code, sections 6067-6068, 6151-6154 and rules 2-101(C), 4-101 and 5-102 of the Rules of Professional Conduct.
3 By analogy, we note that promotion of this important public policy was one of the motivating factors in the recent abolition of the prohibition against fee splitting among lawyers who were not members of the same firm. (See In the matter of Proposed Amendment to rule 2-108(B), Rules of Prof. Conduct, Bar Misc. No. 3922 at Rept. & Rec. of the Board Comm. on Lawyer Services dated December 27, at pp. 5 & 6; App. B, pp. 3-6.)
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