Promoting Business under the Advertising Rules
LACBA Update, December 2009
By Robert K. Sall, who practices with The Sall Law Firm in Laguna Beach, and is a member of the LACBA Professional Responsibility and Ethics Committee. His practice focuses on business litigation, legal malpractice litigation, and attorney-client fee disputes. He can be reached at rsall@Sall-Lawoffice.com. The opinions expressed are his own.
In the current business climate, lawyers look for creative ways to promote themselves—newsletters, mailers, print media, Web sites, late night television, even the glaring message on the side of a bus. It seems like every day we hear a lawyer on the radio promoting his or her creative approach to loan modification.
It is surprising to many that lawyer advertising was unlawful until 1977. Considered unprofessional, forms of advertising other than mere announcements were precluded by the disciplinary rules of every state. That changed with the U.S. Supreme Court’s landmark decision in Bates v. State Bar of Arizona, 433 U.S. 350 (1977); 97 S. Ct. 2691; 53 L. Ed. 2d 810, in which First Amendment protection was extended to lawyer advertising. Underlying the Bates decision was the conclusion that advertising by lawyers actually serves the public interest by providing consumers with useful information about the cost and availability of legal services. And, from the First Amendment perspective, the Court concluded that only reasonable regulation of lawyer advertising was permissible, such as limitations upon time and place, and false or misleading content.
It took the American Bar Association six years after the Bates decision to formulate and adopt Model Rules 7.1 to 7.6, which serve as the basis for regulation of legal advertising in most states. While California has never adopted the ABA’s Model Rules, a mandated effort is under way by the State Bar’s Commission for the Revision of the Rules of Professional Conduct to align our existing Rules of Professional Conduct with the ABA except where good reasons for deviation exist. Until then, California’s advertising rules, set forth in Rule 1-400 and in Business and Professions Code Sections 6157-6159.2, remain unique.
Lawyers have a basic duty of honesty (Bus. & Prof. Code §6106). That duty remains the hallmark of advertising regulation. All communications are prohibited that contain untrue statements, matter or presentation that is false, deceptive or tends to confuse or mislead, or that omit to state facts necessary to make the statements not misleading. All communications that are transmitted in a manner that is coercive, intrusive, threatening, intimidating, vexatious, or harassing, or cause duress are prohibited. Further, it is prohibited to claim “certified specialist” status if that certification is not actually held.
While disciplinary prosecutions for violation of advertising rules are rare, they do occur in cases of misleading advertising. In Re Morse, 11 Cal. 4th 184 (1995), involved a lawyer who mass mailed millions of “information sheet” flyers to the general public, offering services to record homestead declarations. The flyers made false or misleading claims and omitted important distinctions between homestead declarations and the homestead exemption. The misleading advertising resulted in serious discipline. The simple lesson of the Morse decision is that if one is going to self promote through mass mailings, the information in the flyers had better be accurate and not omit information necessary to prevent it from being misleading.
Rule 1-400 makes a critical distinction between the terms “communication” and “solicitation.” A communication is any message or offer concerning the availability for legal employment directed to a former, present, or prospective client, and includes correspondence and advertisements. (Rule 1-400(A)). Conversely, a solicitation is a communication that concerns the availability for legal employment for pecuniary gain and is either delivered in person, by telephone, or directed to a person known by the sender to be already represented by counsel in the subject matter of the communication. (Rule 1-400(B)). Solicitations are flatly prohibited if made to a person with whom the lawyer has no family or prior professional relationship unless otherwise constitutionally protected. Conversely, communications are permissible so long as they do not meet the definition of solicitation. Thus, sending a letter that truthfully solicits legal business from a stranger and does not seek to interfere with a known attorney-client relationship in a particular matter is permitted. It is not a violation, for example, to send letters that solicit class representatives from potential class members prior to certification in a class action. Best Buy Stores, L.P. v. Superior Court, 137 Cal. App. 4th 772, 778 (2006).
Rule 1-400(B) lacks clarity as to what types of telephonic or face-to-face solicitations are constitutionally protected. Let’s say a law firm’s business development partner makes a cold call to a corporation, promoting the firm’s availability to handle the company’s litigation with quality services at competitive rates. Constitutionally protected? Is there is a rational basis or compelling need for the state to regulate the content or manner of such a contact? Practically speaking, disciplinary prosecutions for truthful forms of solicitation are rare, leaving the constitutional protections relatively untested.
What about a solicitation made to a prospective client as to a specific litigation matter in which the lawyer who initiates the contact knows that the client is already represented by another law firm? Such communications may disrupt the existing relationship of trust and confidence between the current lawyer and the client. Thus, for reasons of public policy, poaching of another lawyer’s client is prohibited.
Rule 1-400 authorized the State Bar to adopt standards to specify conduct that would be presumed to violate the rule. These standards appear immediately after the body of Rule 1-400. Advertisements must identify the responsible lawyer. Lawyers may not use agents such as runners or cappers to solicit clients. Lawyers may not imply certain affiliations that do not exist. Advertisements that contain testimonials or dramatizations require certain disclosures. Advertisements may not warrant, guarantee, or predict results. If an advertisement states or implies there is no fee unless a recovery occurs, the advertisement must disclose whether the client is liable for costs. There are limits upon advertising a specific range of fees for services. In addition to the presumed violations under Rule 1-400, other rebuttable presumptions are set forth in Business and Professions Code Section 6158.1. Section 6158.2 allows for a presumption of safe harbor for certain advertised content, provided it is not false, misleading, or deceptive.
The rules should be thoroughly examined before embarking upon a legal advertising campaign. Still the best form of promotion is when your professionalism and the quality of your work speak for themselves.