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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Ethical propriety of circularizing State Bar pamphlets, recommending legal work to clients, and referring clients to attorneys specializing in particular areas of law.
Rules 1 and 2 of the Rules of Professional Conduct of the State Bar.1
An attorney requests an advisory opinion by this Committee concerning the ethical propriety of:
1. Forwarding information (e.g., State Bar pamphlets) to clients generally regarding wills, with a covering letter suggesting that the client should check his own will and estate situation to detemine if a will or modified will is needed;
2. Advising a client that an attorney "in the office" is doing work only in the will and probate field as a specialist; and
3. Giving nonclient friends information regarding wills and/or information regarding an attorney's specialty in this field.
Rule 2 of the Rules of Professional Conduct of the State Bar and [former] canon 27 of the [former] Canons of Ethics of the American Bar Association (commended to the California Bar by rule 1, Rules Prof. Conduct) condemn advertising and solicitation with certain limited exceptions, which exceptions are not applicable to the questions presented.
In Question No. 1, the inquiring attorney, it is assumed, has reference to the State Bar of California pamphlet series, whereunder information regarding various selected legal subjects of interest to the general public is distributed. These pamphlets are intended to be educational but they also, it is to be assumed, have advertising value to the legal profession generally. The State Bar sponsors the series and prepares the format and copy. The pamphlet bears the seal of the State Bar, its name in capital letters, and its San Francisco office address. The series is advertised in a newsletter sent to California lawyers by the State Bar. The advertisements to lawyers state the following with respect to these pamphlets: "Place these in your reception room."
This program is not to be confused with state bar sponsored, so-called legal "check-up" programs (adopted in several other states but not in California) which are advertised directly to the public at large. Complimentary brochures and reprints of these are supplied to lawyers requesting same, without charge. Admittedly, this type of program is institutional advertising, but it has been approved by ethics committees of the respective bars involved. They have ruled generally that it is not improper under [former] canon 27 of the Canons of Ethics of the American Bar Association to have the brochures, reprints and pamphlets in the offices of the lawyers for persons to read and take, but that it is improper to send such literature to persons who are not regular clients and that the individual lawyer's name should not appear thereon. (See Illinois State Bar Ethics Committee, Opn. No. 201; ABA Committee on Prof. Ethics, Opns. Nos. 179 (1938), 191 (1939), 227 (1941) and 307 (1969); Jacksonville Bar Association v. Wilson (1962) 102 So.2d 295.) Certain restrictions have, however, been placed on the form of the general advertising and it has also been ruled that such programs should be sponsored only by state or county bar associations or by an official committee of the American Bar Association.
Further, with respect to this legal "check-up" program, it has been ruled that the literature may not be sent to all the clients of an attorney, and that great care should be exercised by the lawyer in selecting the persons "with respect to whom he feels charged with the continual supervision of such clients' legal affairs." (ABA Committee on Prof. Ethics, informal decision No. C-171.) "Such communications stand on the same footing as that of advising regular clients of new statutes, court decisions, and administrative rulings which may affect the client's interest." (ABA Committee on Prof. Ethics, Opn. No. 213 (1941) and informal decision No. 974 (1966).)
It is the opinion of this Committee that the State Bar approved pamphlets referred to are in the same category as the pamphlets used in the legal "check-up" programs and that they should be circulated only to certain clients, with circumspection and dignity. In addition, they may be placed in reception rooms of lawyers. Such conduct does no violence to rule 2 of the Rules of Professional Conduct of the State Bar. (L.A. Co. Bar Assn. Committee on Legal Ethics, Opn. No. 1965-10.)
With respect to contacting clients generally respecting their wills, the ethical rule is succinctly stated in American Bar Association Committee on Professional Ethics and Grievances, Opinion No. 210 (1941), in which it was observed:
"Many events transpire between the date of making the Will and the death of the testator. The legal significance of such occurrences are often of serious significance of which the testator may not be aware, so the importance of calling the attention of the testator thereto is manifest."
"It is our opinion that where the lawyer has no reason to believe that he has been supplanted by another lawyer it is not only his right but it might even be his duty to advise his client of any change of fact or of law which might defeat the client's testamentary purpose as expressed in the Will."
"Periodic notices might be sent to the client for whom a lawyer has drawn a Will suggesting that it might be wise for the client to re-examine his Wil1 to determine whether or not there has been any change in his situation requiring a modification of his Will."
In American Bar Association Committee on Professional Ethics and Grievances Opinion No. 239 (1941) it was ruled that the distribution by a lawyer to his clients of a pamphlet recommending that they submit their insurance policies to him for advice violates [former] canon 27 of the Canons of Ethics of the American Bar Association on the ground that it was solicitation of professional employment by circulars, and that this would be so regardless of the fact that the distributees were clients. In that opinion the pamphlet involved was prepared by a corporation acting as an insurance analyst.
Drinker has discussed the above question at page 254 in Legal Ethics (1953) and while he approves the sending of pertinent memoranda to clients, he states that it should be done in a way that does not smack of advertising. In that connection he suggests that a personal letter to the client is in better taste than a circular. He also states that a lawyer may not send to a client a copy of the Revenue Laws or a reprint of a legal article that has his name stamped on it, and that a lawyer may not write to clients, generally, nor to friends, communicating to them the necessity and advantages of will-making.
In reply to Question No. 2, it is the opinion of this Committee that an attorney may advise a client that another attorney in the office specializes in wills and trusts, provided the client has consulted the attorney with respect to such matters and that the attorney has not undertaken to solicit new business. This is true whether the other attorney is a member of his firm or whether or not the recommending attorney is to share in the fee.
Drinker has stated with reference to the recommended lawyer:
"A lawyer may properly accept cases recommended to him in good faith by his brother, or by an accounting firm; or cases referred to him on request of client, by the lawyer's brother, there being no suggestion of a splitting of fees, or accept clients recommended bona fide to him by the secretary of deceased lawyer, now his secretary, or by a doctor friend, or a union delegate." (Legal Ethics, supra, at pp. 260-261.)
But where a former associate or partner who has accepted a public office made it a practice of referring clients to his former firm, it was suggested that this might be considered touting and thus improper.
In reply to Question No. 3, it is the opinion of this Committee that a lawyer may not, without request, give nonclient friends information regarding wills but may, of course, do so in response to inquiries, and may give information regarding an attorney's specialty. In certain circumstances it might become necessary that the nonclient be questioned as to whether or not he is otherwise represented by counsel, in order not to encroach upon another lawyer. (ABA Canons of Prof. Ethics, [former] canon 7; Drinker, Legal Ethics, supra, at pp. 190-191.) A lawyer may not seek from persons who are not his clients the opportunity to perform such services or to make such recommendations. He may do no more in acquiring clients in this area of the law than he may do as to other legal matters. (ABA Committee on Prof. Ethics, opn. No. 307 (1962).)
In American Bar Association Committee on Professional Ethics, informal opinion No. 571A (1962), where an attorney proposed to use the following on the bottom of the face of his envelopes, for mailing in general: "Have you made your Will? See your lawyer today!! . . .," it was stated that, where the lawyer is acting individually, notwithstanding he may feel that he is performing a public service, the invitation to have a will drawn or to see a lawyer is at least an indirect form of advertising and of soliciting business for himself, in violation of [former] canon 7. This rule certainly is broad enough to encompass the conduct of an attorney who undertakes aggressively, and without prior solicitation by the client, to recommend another attorney as a specialist.
The admonition immediately above should not be confused with the propriety of an attorney in accepting speaking commitments, in writing articles, or in appearing on panel shows involving legal issues, nor with the giving of legal opinions of a restricted nature, all of which involve mass groups. (ABA [former] Canons of Prof. Ethics, [former] canon 40; State Bar Committee on Prof. Ethics, Opn. No. 1965-2; and Drinker, Legal Ethics, supra,at p. 263.)
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 [PUBLISHER'S NOTE: A complete revision of the Rules of Professional Conduct was approved by the Supreme Court effective January 1, 1975. (See (1975) 14 Cal.3d Rules 1 and "Cross Reference of Present Rules of Professional Conduct to Former Rules of Professional Conduct," in Part III.D.)]
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