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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1. May an attorney contact a personal injury victim by telephone for the purposes of advising him or her of a possible personal injury claim and of the attorney's availability to act as counsel in an action to recover damages for the injuries sustained?
2. May an attorney, under the circumstances and for the purposes described above, contact the personal injury victim by mail?
3. Can a client waive "improper solicitation" by an attorney and his or her agent by signing a retainer agreement containing a provision purporting to waive any acts of improper solicitation on the part of the attorney and anyone acting in concert with the attorney?
1. It is improper for an attorney to solicit by telephone a particular individual regarding a specific case involving that individual for the sole purpose of obtaining employment for pecuniary gain.
2. It is ethically permissible for an attorney to solicit employment for pecuniary gain by means of a letter to a particular individual regarding a specific case involving that individual provided that the letter is not false, deceptive or misleading.
3. An attorney is not excused from the consequences of improper solicitation by obtaining a written waiver of the solicitation from the client at the time the parties enter into a retainer agreement.
Rule 2-101 of the Rules of Professional Responsibility of the State Bar of California.
The Committee has been asked to address the ethical propriety of an attorney soliciting employment from particular potential clients by phone and by mail. It has also been asked whether any solicitation found to be improper can be the subject of a written waiver provision contained in the fee agreement.
The questions arise in the following context. In the course of its business, a workers' compensation insurance carrier learns about injuries caused to employees of its insured. In some cases, the carrier concludes that the injuries were caused by tortfeasors other than the employer. The insurance carrier provides the name, telephone number and address of the injured employee, together with a description of the facts surrounding the injury, to an attorney who wishes to contact the injured employee either by phone or mail for the purposes of advising the employee concerning his or her personal injury claims against the third party tortfeasor and offering representation in prosecuting the claim.
If the injured employee wishes to be represented, the attorney will disclose the fact that the employee's name and other information was obtained by the lawyer from the insurance carrier and that the lawyer has on occasion represented the insurance carrier on other matters completely unrelated to the injured employee's claim. The lawyer's written retainer agreement will acknowledge the referral and will include a waiver by the client of any improper solicitation on the part of the attorney and insurance carrier.
In considering the question of lawyer advertising and solicitation, we are guided, in the first instance, by the series of United States Supreme Court cases addressing the rights of lawyers to advertise. (See Bates v. State Bar of Arizona (1977) 433 U.S. 350 [97 S.Ct. 2691]; In re Primus, (1978) 436 U.S. 412 [98 S.Ct. 1893]; Ohralik v. Ohio State Bar Association (1978) 436 U.S. 447 [98 S.Ct. 1912]; In re R.M.J., (1982) 455 U.S. 191 [102 S.Ct. 929]; Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985) 471 U.S. 626 [105 S.Ct. 2265]; Shapero v. Kentucky Bar Association (1988) U.S. [108 S.Ct. 1916].) We are also guided by the existing rules regulating lawyer advertising in California, codified at rule 2-101 of the Rules of Professional Conduct.
In Bates v. State Bar of Arizona, supra, 433 U.S. at p. 384, the Court held that the state could not prohibit the publication of an attorney's truthful newspaper advertisement concerning the availability of "routine" legal services.
In Ohralik and Primus, the Court addressed the propriety of more direct forms of client solicitation. In Ohralik, the lawyer contacted two people who had recently been involved in an automobile accident. The lawyer personally visited one in the hospital and the other at home. The lawyer in Primus, a volunteer attorney for the American Civil Liberties Union, attended a meeting of welfare mothers called to discuss the state's threat to terminate Medicaid benefits to women refusing sterilization. At the meeting, the lawyer advised the women of their legal rights and advocated filing a lawsuit. The lawyer subsequently wrote to one of the women and asked her for permission to file a lawsuit on her behalf. The Supreme Court held the solicitation improper in Ohralik but upheld the conduct of the lawyer in Primus.
In In re R.M.J., the Court returned to the question of the permissible content of lawyer advertising. In that case, a lawyer's advertising program that included mailings to the general public containing statements concerning the fees charged for certain legal services was challenged. The Supreme Court held that while states retain the ability to regulate advertising that is inherently misleading or that has proved to be misleading in practice (such as lawyer advertising), the First and Fourteenth Amendments require that they do so with care and in a manner no more extensive than reasonably necessary to further the state's substantial interests.
In Zauderer, the Court struck down an Ohio rule that categorically prohibited solicitation of legal employment for pecuniary gain through advertisements containing information or advice, even if truthful and nondeceptive, regarding a specific legal problem. In so doing, the Court distinguished between permissible written advertisement and improper "in-person" solicitation. The Court reaffirmed the holding in Ohralik that the unique features of in-person solicitation by lawyers justified a prophylactic rule categorically prohibiting lawyers from engaging in such solicitation for pecuniary gain. (Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, supra, 471 U.S. at p. 643.)
In Shapero v. Kentucky Bar Association, supra, 108 S.Ct. at p. 1921-1922, the Court held that Kentucky could not categorically prohibit lawyers from soliciting legal business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems. The Court reasoned that "the First Amendment does not permit a ban on certain speech merely because it is more efficient; the State may not constitutionally ban a particular letter on the theory that to mail it only to those whom it would most interest is somehow inherently objectionable."
Rule 2-101(B) specifically prohibits "communications" seeking professional employment from a potential client for pecuniary gain by telephone and "communications" specifically directed to a particular potential client regarding that potential client's particular case or matter for pecuniary gain unless the "communication" is protected by the Constitutions of the United States or this State.
This Committee believes that, under the decisions discussed above, the state may appropriately regulate, or even prohibit altogether, uninvited direct telephone solicitation for pecuniary gain of a specific client concerning a discrete and existing legal matter, which is the case in the hypothetical before the Committee. (See Formal Opinion 1980-54, noting the long standing prohibition against telephone solicitation.)
Our opinion is consistent with the decision in Shapero v. Kentucky Bar Association, supra, 108 S.Ct. at p. 1922. As noted by the Court there, "the mode of communication makes all the difference. Our decision in Ohralik that a State could categorically ban all in-person solicitation turned on two factors. First was our characterization of face-to-face solicitation as 'a practice rife with possibilities for overreaching, invasion of privacy, the exercise of undue influence and outright fraud.' . . . Second, 'unique . . . difficulties,'. . . would frustrate any attempt at state regulation of in-person solicitation short of an absolute ban because such solicitation is 'not visible or otherwise open to public scrutiny.'"
Like face-to-face solicitation, telephone solicitation would be virtually immune to effective oversight and regulation by the state because it is difficult or impossible to obtain reliable proof of what actually took place and the solicitation is not visible or otherwise open to public scrutiny. Furthermore, like in-person solicitation, telephone solicitation can involve undue pressure on the potential client for an immediate yes-or-no answer to the offer of representation.
Accordingly, rule 2-102(B) can and does properly prohibit the telephone solicitation proposed in the hypothetical.
The United States Supreme Court has specifically held that a lawyer may ethically solicit clients by means of sending letters to specifically targeted individuals. (Shapero v. Kentucky State Bar, supra, U.S. [108 S.Ct. 1916].) Shapero involved a lawyer who proposed to send letters to persons he identified from a search of court records relating to the filing of foreclosure suits. There, the Court stated that the problems associated with regulating in-person solicitation -- solicitation which is not visible or open to public scrutiny, therefore making it difficult to obtain reliable proof of what actually took place -- do not apply to written solicitations.
Viewed purely as an issue of attorney advertising, and in light of Shapero, this Committee perceives no distinction in the First Amendment protection afforded the lawyer sending letters to potential foreclosure victims and the protection that should be afforded to the lawyer sending letters to personal injury victims. Any such written solicitation must, however, be maintained by the lawyer for a period of at least one year. (Rule of Professional Conduct 2-101(E).)
The present inquiry does not spell out in detail the substance of the proposed written communication. Therefore, in reaching our conclusion, we assume that the communication which the lawyer intends to send is truthful and does not contain any deceptive or misleading information. (See Leoni v. State Bar (1985) 39 Cal.3d 609 [217 Cal.Rptr. 423].) Because such determinations must be made on case by case basis in light of all of the facts, we cannot and do not opine on what must specifically be contained in a written communication for it to be deemed truthful and not misleading.1
Furthermore, under the facts presented in the hypothetical, the Committee believes that the lawyer should take care to ensure that, in obtaining from a third party the name and address of the injured employee and the facts surrounding the injury, the third party has not, by disclosure of that information, violated the employee's privacy rights or other state or federal laws. If in fact the employee's privacy rights or other state or federal laws are violated by the disclosure, the use of such information could be illegal and subject the lawyer to discipline.
Finally, the Committee believes that the lawyer cannot shield improper solicitation from scrutiny by securing a written waiver of such conduct from the client in the retainer agreement. Such a waiver would not relieve the attorney from his or her professional obligations under the Rules of Professional Conduct which are designed to protect the public. (See Ames v. State Bar (1973) 8 Cal.3d 910 [106 Cal.Rptr. 489].)
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 on the courts, the State Bar of California, its Board of Governors, any person or tribunals charged with regulatory responsibilities, or any member of the State Bar.
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