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.

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT

FORMAL OPINION NO. 1997-148

ISSUE:

Without violating his or her ethical obligations, may a lawyer prepare "living trust" documents for a member of the public at the direction of, or on behalf of, a non-lawyer such as a financial marketer or a life insurance agent who: (1) markets a living trust package to the public; (2) advises individuals about estate plans; and (3) supervises the creation of the living trust documents?

DIGEST:

When a lawyer permits a non-lawyer who markets living trust packages to hold out to the public that the lawyer will prepare the documents, but allows the marketer to interfere with the lawyer's ability to exercise independent judgment regarding the type of estate plan involved and other matters, the lawyer acts unethically.

AUTHORITIES INTERPRETED:

Rules 1-100, 1-320, 1-400, 1-600, 3-110, and 3-310 of the Rules of Professional Conduct of the State Bar of California.

STATEMENT OF FACTS

A financial marketer, insurance agent, or other non-lawyer who markets living trust1 packages to members of the public ("marketer") holds seminars during which the advantages of living trusts are discussed, and seminar attendees are urged to order a living trust. Members of the public are invited to attend the seminar free of charge. The marketer advertises the seminar in the local newspaper and in flyers delivered to homes in the area where the seminar will be held. Both types of advertisement strongly encourage seminar participants to attend the seminar.

During the seminar, the marketer describes the benefits of living trusts and repeatedly states that every seminar participant should have a living trust. The marketer does not discuss any other estate planning alternatives that might be appropriate for, or more in the interest of, individual participants. The marketer provides easy-to-complete questionnaire forms so that seminar participants can provide the relevant family and financial information needed to complete their estate plans. The marketer also tells the seminar participants that Lawyer will prepare the living trusts for them, respond to any questions they may have about the living trusts, and supervise the execution of the documents. Participants pay either the marketer in advance, or Lawyer when executing the documents. Immediately following the seminar, a participant orders a living trust. She gives her completed estate planning questionnaire form, which identifies her beneficiaries and personal representatives, and her payment, to the marketer.

The marketer gives the form to Lawyer, who then prepares a living trust for the participant. Lawyer has no discretion to decide that something other than a living trust might be more suitable for the participant. Lawyer sends the living trust to the participant with a cover letter indicating that the participant should make an appointment with Lawyer to sign the documents. The participant executes the living trust at Lawyer's office. The marketer compensates Lawyer.

DISCUSSION

I. Introduction

California adopted its rules of professional conduct2 in part expressly "to protect the public."3 The vice of the conduct in the facts above is its potential to mislead members of the public into believing that they have an attorney whose sole purpose in the transaction is to look after their best interests.4

The best interests of the participant may mean that a living trust should not be an integral part of her estate plan. The best interests of the marketer, however, are most often served only if the participant's estate plan includes a living trust. The lawyer's duty to the participant includes educating the participant as to the available estate planning options and not simply presenting one estate planning format which all must use.5

II. Application of California Rules of Professional Conduct

This portion of the discussion does not attempt to address every factual permutation found in the reported decisions to date. This discussion sets forth the California Rules of Professional Conduct implicated by the attorney's conduct in the factual setting described above. This discussion also identifies, where it may help practitioners avoid the pitfalls of these arrangements, the most common violations found by other ethics committees or courts on variations of these facts, under ethics rules analogous or identical to California's.

In the facts above, the attorney and the seminar participant appear to have a client-lawyer relationship. The participant is told that a lawyer will prepare the living trust documents for the participant, will respond to the participant's questions, and will supervise the participant's execution of the documents. The attorney communicates with the participant by letter, sends the completed living trust to the participant, meets with the participant, has the documents signed in the attorney's office, and may accept the payment for the living trust documents.

Whether a client-lawyer relationship exists in any situation is a matter of contract law. (Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1732-1733 [20 Cal.Rptr.2d 756] (analyzing relationship among lawyer, business partnership, and individual partners where no written contract established client- lawyer relationship among parties; holding that attorney-client relationship is created by some form of contract, express or implied, formal or informal).6) This discussion assumes the existence of such relationship in the facts above.7

Moreover, in the above facts the lawyer may concurrently have a relationship with the marketer. This may give rise to additional obligations on the lawyer's part.8

In arrangements like those described in the facts above, the marketer's only interest is a financial one: closing the sale of a living trust to the individual. The marketer controls the lawyer's access to such individuals and the relationship between them. The lawyer is dependent upon the marketer for employment and compensation in these circumstances.

Rule 1-600(A) provides in part:

Under the facts presented, the marketer is controlling the engagement of the lawyer. Here, the lawyer permits the essential estate planning tasks, including fact-finding, to be performed by the non-lawyer marketer without exercising independent professional judgment. In addition, the lawyer has allowed the marketer to perform these tasks without supervision. This is unlike situations where lawyers employ paralegals and others to conduct basic investigation and the like, with the lawyer maintaining adequate supervision over the process. (See Spindell v. State Bar (1975) 13 Cal.3d 253, 260 [118 Cal.Rptr. 480] (attorney has obligation adequately to supervise employees); Discussion, rule 3-110 ("[t]he duties set forth in rule 3-110 include the duty to supervise the work of subordinate attorneys and non-attorney employees or agents.").)

In order to create an appropriate estate plan, relevant family and financial information must be ascertained from the seminar participant. The lawyer must, with the participant's input, determine the proper type and components of the participant's estate plan. The lawyer must counsel a participant regarding all of the options which are appropriate and the pros and cons of each option.9 After such counseling, the participant must decide if a living trust arrangement, a will, or some other arrangement should be the cornerstone of the estate plan. Under the facts presented, the marketer assumes this function. The marketer determines the type, terms, and conditions of the estate plan, without the lawyer's involvement. The marketer decides what information to solicit and to convey to the lawyer. By acquiescing to the marketer's unilateral authority to make these critical decisions, the lawyer allows a third party to interfere with the lawyer's independence of professional judgment and violates rule 1-600(A).10

A lawyer's preparation of living trust documents at the direction of the marketer may create one or more relationships between the lawyer, marketer, and participant. Under the facts presented, the lawyer represents the participant. However, the lawyer also has a relationship with the marketer. In some cases it may be a client-lawyer relationship. When the marketer compensates the lawyer, they may have a business and financial relationship like the third-party payor relationship between an attorney and an insurer. If instead the attorney and marketer divide fees, fee- splitting with a non-lawyer may exist.

The marketer's interests are served only if the participant's estate plan includes a living trust, often with the marketer as trustee of the living trust. However, the best interests of the participant may mean that a living trust should not be an integral part of the estate plan. The lawyer's duty to the participant includes educating the participant as to the available estate planning options and not simply presenting one estate planning format which all must use. The lawyer in these situations is attempting to serve two masters, the participant and the marketer.

Under the facts presented, a lawyer-client relationship is assumed to exist between the lawyer and the participant, and a business and professional relationship exists between the lawyer and the marketer. The lawyer and the marketer have a business and financial relationship because the lawyer obtains employment or compensation through the marketer.

The existence of the business and financial relationship between the lawyer and the marketer triggers certain disclosure obligations by the lawyer under rule 3-310(B). Rule 3-310(B) provides in part:

Rule 3-310(B) addresses situations in which a lawyer's relationship could interfere with a lawyer's loyalty and independent professional judgment on a client's behalf. The lawyer's relationship with the marketer here creates the possibility of a conflict of interest that warrants disclosure under the rule.

As noted above, the client and the marketer may have differing interests in the engagement. The best interests of the participant may mean that a living trust should not be an integral part of the estate plan. The best interest of the marketer, however, is most often served only if the participant's estate plan includes a living trust. The lawyer's duty to the participant includes educating the participant as to the available estate planning options and not simply presenting one estate planing format which all must use.

Here, the lawyer's judgment may be influenced by the lawyer's relationship with the marketer, who is a "party" as the facilitator of the transaction, or perhaps as trustee of the living trust. This relationship triggers rule 3-310(B)(1). Additionally, the marketer profits from the sale of the living trust, and receives the opportunity to market other products or services to the participant and this triggers rule 3-310(B)(3). Accordingly, under either subdivision (B)(1) or subdivision (B)(3) of rule 3-310, the lawyer is barred from representing the participant unless the lawyer makes the required written disclosure to the participant. Rule 3-310(A)(1) defines "disclosure" as "informing the client . . . of the relevant circumstances and of the actual and reasonably foreseeable adverse consequences to the client . . . ." Rule 3-310(A)(3) defines "written" as "any writing as defined in Evidence Code section 250."

In this case, the lawyer has a duty to inform the participant- client in writing of the full extent of the lawyer's business and financial relationship with the marketer, and the differing interests of the marketer and participant in the transaction. The lawyer's duty to inform the participant-client of reasonably foreseeable adverse consequences includes informing the participant in writing about how these relationships could cause the lawyer to favor the interests of the marketer and influence the lawyer's advice to the client.11

In some cases a lawyer may have a lawyer-client relationship with both a participant and a marketer. When a lawyer represents both a participant and a marketer in connection with preparation of a living trust, that lawyer must comply with rule 3-310(C)(1) or rule 3-310(C)(2), depending on the circumstances. These rules state:

The differing interests of a participant-client and a marketer- client create at least potential conflicts requiring consent under rule 3-310(C)(1). Moreover, to the extent that a lawyer's relationship with one client affects the lawyer's loyalty and independent judgment on behalf of another client, an actual conflict of interest exists. This can occur when the lawyer receives conflicting instructions from the clients, or is called upon to advance inconsistent objectives of the clients. Such circumstances trigger a duty to obtain further consent under rule 3-310(C)(2).12

Rule 1-320 provides that a lawyer shall not "directly or indirectly share legal fees with a person who is not a lawyer" except in limited circumstances. (Emphasis added.) Specifically barred is the giving of anything of value in exchange for recommending or securing employment for the lawyer.

In the facts above, the marketer advertises that a lawyer will review the living trust documents. In the seminar, the marketer tells participants that the lawyer will prepare the documents, respond to their questions, and supervise execution of the documents. Participants deliver payment in hand either to the lawyer or to the marketer for the living trust, and both the lawyer and the marketer are compensated therefrom. As previously noted, under these facts the Committee presumes the existence of a client-lawyer relationship between participant and lawyer.

The lawyer cannot receive payment from participants for legal services and then pay the marketer a share for finding the clients and referring them to the lawyer. Rule 1-320(B) states in part: "A member shall not compensate, give, or promise anything of value to any person or entity for the purpose of recommending or securing employment of the member or the member's law firm by a client, or as a reward for having made a recommendation resulting in employment of the member or the member's law firm by a client. . . ." (The remainder of rule 1- 320 permits "gifts or gratuities" to non-lawyers, a circumstance not raised in the facts above.)13

The prohibition against a lawyer splitting fees with a non-lawyer is directed at the risk posed by the possibility of control of legal matters by a non-lawyer interested more in personal profit than the client's welfare. (In the Matter of Jones (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 411.) To the extent this policy is implicated, the lawyer should not be able to "sanitize" such impermissible fee-splitting by the simple expedient of having the marketer receive the funds, make the division, and distribute them to the lawyer.14 Ethics opinions and court decisions in those jurisdictions finding violations of rules barring fee- splitting between lawyers and non-lawyers equivalent to rule 1- 320 in the estate planning context similarly do not turn upon whether the lawyer receives payment for the trust and divides it with the marketer, or vice versa.

In the facts above, the marketer states at the seminars that everyone needs a living trust and does not offer any alternatives. At the seminar the marketer tells participants that Lawyer will prepare the living trusts for them, respond to any questions they may have about living trusts, and supervise their execution of the documents. The marketer provides easy-to- complete questionnaire forms for providing the family and financial information determined by the marketer to be needed to create the living trusts, which the seminar participants fill in and deliver to Lawyer. As previously noted, under these facts the Committee assumes that the resultant relationship between participant and lawyer is a client-lawyer relationship.

The harm to the public in this scenario is two-fold. First, it misleads participants into believing that a living trust is suitable for everyone, and that they need consider no other estate planning options. Second, it constitutes impermissible in-person solicitation by a lawyer through the marketer as his agent. The ethical rules prohibit both false advertising, and in-person solicitations.15 In addition, if the flyers are transmitted by mail or equivalent means and contain the lawyer's name but do not identify themselves as advertisements, the lawyer's involvement may presumptively violate rule 1-400 .16

Rule 1-400 provides in part:

The statements by the marketer in connection with the marketing of the living trust, whether at the seminar or in writing, regarding the lawyer preparing the living trusts and the availability of that lawyer to respond to questions relating to the trusts, are communications under rule 1-400(A) since they concern the availability of a lawyer for professional employment, and are therefore subject to the requirements of rule 1-400(D). Here, like the communications found violative in Leoni v. State Bar, supra, 39 Cal.3d 609 and People v. Morse, supra, 21 Cal.App.4th 259 at fn. 13, they have potential to mislead members of the public. In Leoni v. State Bar, the letters and brochures inaccurately suggested or intimated that all recipients needed a lawyer, that their property was subject to immediate attachment, that bankruptcy was appropriate for them, and the like. In People v. Morse, the advertisements made inaccurate suggestions and statements regarding the protections afforded recipients by the homestead laws. Here, the statements at the seminar, by their generic, "one-size-fits-all" recommendation of living trusts for everyone, similarly contain untrue statements, and omit facts -- such as that living trusts may not be best in every case -- necessary to make the communications not misleading.

Further, the marketer's statements at the seminar regarding the professional employment of the lawyer in connection with marketing the living trust constitute a prohibited in-person solicitation under rule 1-400(B) and rule 1-400(C). This rule applies because a significant motivation for the promotion of the lawyer's services for the participant is pecuniary gain (rather than communication of general information regarding living trusts). For purposes of rule 1-400, it makes no difference whether the marketer or the lawyer seeks or receives payment from the participant, since the rule regulates employment motivated by pecuniary gain, without regard to whether a lawyer or one acting on his behalf seeks or obtains that gain. Since the solicitation is directed at obtaining prospective clients with whom the lawyer has no prior professional relationship, it is prohibited by rule 1-400(C). The use of the marketer to communicate with the participant will not insulate the lawyer from a violation of rule 1-400(C), which prohibits improper solicitations made by "or on behalf of" the lawyer. In both the advertising and the solicitations, the marketer cannot do on the lawyer's behalf what the lawyer cannot do. Under the facts, the marketer simply becomes the agent of the lawyer. A lawyer cannot avoid the prohibition against in-person solicitation by associating with a non-lawyer who engages in such prohibited conduct on the lawyer's behalf.17

CONCLUSION

Arrangements between lawyers and marketers like those described in the facts above, and variations thereof, have received intense scrutiny throughout the country by ethics committees, courts, and disciplinary authorities. Decisions in other jurisdictions uniformly hold them unethical on a variety of bases. Discipline has been imposed in California on an attorney participating in one such arrangement. Practitioners should carefully examine their participation in any arrangement of this sort.

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 responsibility, or any member of the State Bar.

1 For purposes of this Opinion, the term "living trust" refers to those documents comprising an estate plan which has as its critical dispositive document a revocable inter vivos trust.

2 All rule references are to the California Rules of Professional Conduct.

3 See rule 1-100(A).

4 This is different from legal do-it-yourself books and the like. They typically warn the consumer that a generic approach to the problem may not work for their case, and they do not claim or imply that a lawyer is handling the consumer's particular matter. In contrast, in the above facts participants are led to believe that they have a lawyer, and all that this implies. That apparently is one of the main selling points of such programs. At least nineteen states including Colorado, Connecticut, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Maryland, Michigan, Missouri, Montana, Ohio, Oregon, South Carolina, South Dakota, Texas, Utah, and West Virginia have issued ethics opinions, court decisions, or both, finding unethical the conduct of attorneys who participate in arrangements like that portrayed in the facts above, or in one of the many variations thereof. These reported ethics opinions and court decisions uniformly have found the attorney's conduct in such contexts impermissible. Rule 1-100(A) states, in part, "[a]lthough not binding, opinions of ethics committees in California should be consulted by members for guidance on proper professional conduct. Ethics opinions and rules and standards promulgated by other jurisdictions and bar associations may also be considered." The State Bar of California has formally disciplined an attorney for conduct containing elements like those described in the facts above. (See In the Matter of Evangelin Marie Miller (stip. filed Sept. 26, 1994; case no. 91-O-88839) [two years' probation imposed].)

5 Depending upon the particular factual variations in the arrangement, ethics opinions and court decisions in various jurisdictions identify seven different ethics principles actually or potentially violated when attorneys participate in such arrangements: (1) interference with independence of professional judgment or with the client-lawyer relationship; (2) representation of adverse interests; (3) improper solicitation or advertising; (4) improper division of fees between lawyer and non-lawyer; (5) incompetent representation; (6) violations of confidentiality; and (6) aiding in the unauthorized practice of law. The first four are most often cited as bases for finding ethical violations. The unauthorized practice of law is also commonly found.

The Committee recognizes that the fact situation presented in this opinion may raise an issue regarding the unauthorized practice of law. Rule 1-300(A) states that "[a] member shall not aid any person or entity in the unauthorized practice of law." However, this opinion is not intended to address or opine on the issue of the unauthorized practice of law. Regarding activities undertaken by an individual who is not an active member of the California State Bar, members should consider California Business and Professions Code sections 6125-6127. Members should also consider rule 1-300 (Unauthorized Practice of Law) and rule 1-310 (Forming a Partnership With a Non-Lawyer). Regarding what constitutes the practice of law in California, members should consider the following cases: Farnham v. State Bar (1976) 17 Cal.3d 605 [131 Cal.Rptr. 661]; Bluestein v. State Bar (1974) 13 Cal.3d 162 [118 Cal.Rptr. 175]; Baron v. City of Los Angeles (1970) 2 Cal.3d 535 [86 Cal.Rptr. 673]; Crawford v. State Bar (1960) 54 Cal.2d 659 [7 Cal.Rptr. 746]; People v. Merchants Protective Corporation (1922) 189 Cal. 531, 535; Birbrower, Montalbano, Condon & Frank v. Superior Ct. (1996) 49 Cal.App.4th 801 [56 Cal.Rptr.2d 857] review granted Jan. 15, 1997; (SO57125); People v. Landlords Professional Services (1989) 215 Cal.App.3d 1599 [264 Cal.Rptr. 548]; and People v. Sipper (1943) 61 Cal.App.2d Supp. 844 [142 P.2d 960].

6 The Responsible Citizens court suggested that "one of the most important facts involved in finding an attorney-client relationship is 'the expectation of the client based on how the situation appears to a reasonable person in the client's position.'" (Responsible Citizens v. Superior Court, supra, 16 Cal.App.4th at p. 1734.)

7 Apart from ethical obligations arising from the existence of a client-lawyer relationship, the attorney may have fiduciary obligations creating legal liability even if no client-lawyer relationship is formed between them. If as a result of the lawyer's negligence the estate plan is defective, the lawyer may be civilly liable to the participant or beneficiaries. (E.g., Miller v. Metzinger (1979) 91 Cal.App.3d 31 [154 Cal. Rptr. 22] (lawyer may be liable to prospective client for failing to tell him that statute of limitations on his claim will soon run); Lucas v. Hamm (1961) 56 Cal. 2d 583 [15 Cal. Rptr. 821] (lawyer may be liable to beneficiaries named in client's will if, due to lawyer's negligence, will fails to carry out testator's intentions); see Greycas, Inc. v. Proud (7th Cir. 1987) 826 F.2d 1560, cert. den. (1988) 484 U.S. 1043 (lawyer agreed to investigate title to client's property used as loan security; lawyer held liable to lender for failure to investigate and inaccurate description of title); see also Restatement of the Law (3d ed. 1994) The Law Governing Lawyers, tentative draft no. 7, section 73 (suggesting lawyers properly found liable in above circumstances).)

8 Opinions from other jurisdictions have analyzed these arrangements from a variety of standpoints: a client-lawyer relationship between the participant and the lawyer, a client- lawyer relationship between the marketer and the lawyer, or both. If the participant is viewed as the client, the ethics opinions from other jurisdictions typically identify independent judgment, interference with the client relationship, and breach of confidentiality as issues. If the marketer is viewed as the client, the ethics opinions from other jurisdictions typically identify assisting the unauthorized practice of law, and fee- splitting with a non-lawyer as issues. If both are clients, these opinions typically identify conflicts of interest issues.

9 See Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1683- 1684 [19 Cal.Rptr.2d 601] ("One of an attorney's basic functions is to advise. . . . Not only should an attorney furnish advice when requested, but he or she should also volunteer opinions when necessary to further the client's objectives . . . . [E]ven when a retention is expressly limited, the attorney may still have a duty to alert the client to legal problems which are reasonably apparent, even though they fall outside the scope of the retention.").

10 Compare California State Bar Formal Opinion Number 1995-141 at fns. 16-17 (while lawyer may perform non-legal services such as licensed real estate brokerage, business management, or accounting services for client, lawyer cannot permit non-lawyer connected with these other services to influence conduct of lawyer's legal practice through referral of business or imposing other profit-related concerns on the legal practice under rule 1-320(B). This concern is not limited to referrals of related non-legal services. Whenever a relationship exists involving an ongoing referral of business to a lawyer's practice that results in a non-lawyer having influence over the lawyer's judgment or conduct, written disclosure to client may be required by rule 3-310(B)(3)).

11 The Committee cautions that merely making the required disclosure is not enough to fulfill all of the lawyer's ethical duties to the participant-client. For example, rule 3-110 prohibits intentional, reckless, or repeated failure to perform legal services with competence. When the lawyer cannot competently represent and advise the participant-client as a result of the business and financial relationship with the marketer, the lawyer may be under a mandatory duty to withdraw from the representation even if written disclosure pursuant to rule 3-310 has been accomplished. (See rule 3-700(B)(2) [requiring mandatory withdrawal when a member knows or should know that continued employment will result in a violation of the rules].) (See also L.A. Cty. Bar Assn. Formal Opn. No. 471.)

12 The present facts concern the case where a lawyer has a lawyer-client relationship with the participant, and a business and financial relationship with the marketer. As noted above, cases may exist where a lawyer has a lawyer-client relationship with both a participant and a marketer. Other possibilities exist, depending upon the facts. For example, the lawyer might have a lawyer-client relationship with the marketer, and a business and financial relationship with the participant. Or the lawyer might have only business and financial relationships with both. Potential conflicts appear to exist in some of those circumstances as well. This discussion does not purport to address every possible factual possibility.

13 See California State Bar Formal Opinion Number 1995-141 (non-lawyers connected with lawyers in the provision of non-legal services cannot share in the profits of a law practice; rule 1-320 prevents a member from directly or indirectly sharing legal fees with a non-lawyer); compare California State Bar Formal Opinion Number 1995-142 (attorney paying non-lawyer a flat monthly fee for compiling list of those recently charged with a crime based on information obtained from police department records, and for preparing and mailing letters to arrestees, must conform to rule 1-320 requirements; attorney may not directly or indirectly share legal fees received as a result of the solicited engagements with non-lawyer or compensate, give, or promise anything of value for purpose of recommending or securing attorney's employment, or as a reward for having made such a recommendation resulting in employment).

14 In California State Bar Formal Opinion Number 1995-140, the Committee considered whether rule 3-300, concerning a lawyer's entering into a business transaction with a client or acquiring an adverse pecuniary interest, applies to arrangements where the lawyer is paid a commission by an insurance agent for referring the lawyer's clients to the agent for insurance: "In the Committee's view, rule 3-300 applies to the referral arrangement described in the hypothetical regardless of the fact that the commission is paid to the lawyer by the insurance agent, and not directly by the client to the lawyer." (Id. at p. 4.) Similarly here, a mere change in payment arrangements cannot provide a subterfuge to avoid ethical rules that otherwise apply. Note that, while other rules applied, the arrangement considered in California State Bar Formal Opinion Number 1995-140 did not constitute fee-splitting. There the lawyer sent the agent insurance clients and received a commission. Here the marketer sends the lawyer legal clients and receives a financial reward. Indeed, such conduct by the marketer and lawyer might constitute "capping." (See Bus. & Prof. Code, §§ 6152-6153 (runners and cappers; prohibition of solicitation; violation as misdemeanor).)

15 Truthful advertising is protected by the First Amendment to the United States Constitution, and no prohibition against lawyers or others advertising such seminars exists if within Constitutional bounds. This may well include informational seminars, and discussions with lawyers ensuing therefrom. Lawyers are permitted to advertise the availability and terms of routine legal services, 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. (Leoni v. State Bar of California (1985) 39 Cal.3d 609, 624 [217 Cal.Rptr. 423] (disciplining attorney who sent out approximately 250,000 letters and informational brochures to individuals and businesses where such advertisements contained misleading information).) However, the states are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading. (Ibid.) Thus, for commercial speech to receive First Amendment protection, "it at least must concern lawful activity and not be misleading." (People v. Morse (1993) 21 Cal.App.4th 259, 265 [25 Cal.Rptr.2d 816] affd. In re Morse (1995) 11 Cal.4th 184 [44 Cal.Rptr.2d 620] (disciplining attorney who sent out 1.8 million advertisements to members of general public containing false and misleading information concerning homestead exemption and declaration).)

16 The Board of Governors of the State Bar of California adopted the following standard respecting a "communication," as defined in rule 1-400, that is presumed to violate rule 1-400:

17 See, e.g., California State Bar Formal Opinion Number 1995-143 (lawyer's use of non-lawyer "medical liaison" to give presentation to doctors containing promotional message describing lawyer's practice constitutes "communication" under rule 1-400 and subject to standards adopted pursuant to rule 1-400(E); impermissible solicitation occurs under rule 1-400(C) where doctor acts as agent of lawyer in soliciting clients because done on behalf of lawyer); California State Bar Formal Opinion Number 1995-144 (non-lawyer investigator sent by lawyer to accident scene to interview witnesses where lawyer represents no one in a matter relating to accident at time investigator sent; "clientless" investigations create risk that investigation will result in impermissible solicitation under rule 1-400(C)).

.