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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Is it improper to distribute unsolicited letters to potential business clients describing services offered by the sender?
Under rule 2-101 of the Rules of Professional Conduct it is not improper for an attorney or law firm to send unsolicited letters to potential business clients describing the legal services offered by the sender without reference to the potential client or any specific case or matter involving the potential client.
Rule 2-101 of the Rules of Professional Conduct of the State Bar.
The Committee has been asked whether a law firm may transmit unsolicited letters describing services offered by the firm to potential business clients within the State of California without reference to such potential client or any specific case or matter involving such potential client. The inquirer also asks whether such letters may be transmitted to organizations outside the State of California and whether there are any specific limitations respecting the contents of such letters.
It is the opinion of the Committee that, under rule 2-101 of the Rules of Professional Conduct, an attorney or law firm may transmit to trade organizations and potential business clients unsolicited letters describing professional services offered by the firm without reference to the potential client or any specific case or matter involving the potential client.
The contents of such letters, as advertisements for legal services, are regulated by the provisions of rule 2-101 of the Rules of Professional Conduct, which provide:
"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 a 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.
"(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) and (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."
The following initial statements have been adopted by the Board of Governors of the State Bar:
"A 'communication' is presumed to violate rule 2-101, Rules of Professional Conduct, if it:
"(1) Contains guarantees, warranties or predictions regarding the result of legal action; or
"(2) Contains testimonials about or endorsements of a member; or
"(3) 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; or
"(4) Is transmitted at the scene of an accident or at or en route to a hospital, emergency care center or other health care facility."
In view of the generality of the inquiry, the Committee is not in a position to advise with more specificity with respect to the permissible content of such letters; for the same reason, the Committee has not considered the potential applicability of any laws and regulations or Rules of Professional Conduct other than rule 2-101.
It should be noted that rule 2-101 of the Rules of Professional Conduct continues the longstanding prohibition of direct in-person or telephone solicitation as well as prohibiting solicitation by mail, seeking employment for pecuniary gain, which is specifically directed to a particular potential client regarding that client's particular case or matter, unless such solicitation by mail is protected from abridgment by either the constitutions of the United States or of California. (Rule 2-101(B), Rules Prof. Conduct.)1
In the Preface to the Final Report and Recommendations of the Special Committee on Lawyer Advertising and Solicitation of the State Bar of California (November 1978) the Special Committee notes that rule 2-101(B) of the Rules of Professional Conduct, as revised, requires a determination as to whether a particular writing is a permitted advertisement or a prohibited solicitation, and states on page (iii) that:
"A writing will be deemed a prohibited solicitation if:
"(1) It is specifically addressed or directed to a particular potential client; and
"(2) It regards the particular case or matter of the particular potential client addressed; and
"(3) It seeks professional employment for the pecuniary gain of the member."
Ordinarily, it would be clear that a letter of the type described in the inquiry would be for the purpose of obtaining professional employment for pecuniary gain. Often such a letter would be personalized to the extent of being addressed to a particular potential client, which may be sufficient to cause it to be "specifically directed" to the client. This is not to say, however, that a letter need be personalized to come within the prohibition if the content indicates that the potential client is being solicited on a particular case or matter. Generally, however, the determination of whether the letter is an allowed advertisement or a prohibited solicitation will turn on whether the services are offered (a) with respect to a potential legal problem which may be common to many of the parties to whom the letter is directed, but which does not, as yet, exist (which would be permitted) or (b) with respect to a particular existent case or matter which involves, or which may eventually involve, the individual solicited (which would not be allowed). For another expression of views with respect to unsolicited letters to potential clients, reference is made to opinion No. 1979-1 of the Legal Ethics Committee of the Bar Association of San Francisco.
With respect to transmitting such letters to organizations outside the State of California, rule 2-101 of the Rules of Professional Conduct does not prohibit such mailings. However, this Committee does not pass upon legal questions which in this instance include the question of whether any other jurisdiction does or constitutionally could prohibit or otherwise regulate such mailings. The Committee also does not opine as to whether transmitting such letters into another jurisdiction may be considered the practice of law within that jurisdiction. Such determination should be made by the appropriate licensing authorities or courts of such other jurisdiction.
This opinion is issued by the Standing Committee on Professional Responsibility 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, and persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
1 (See 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]; and Bates v. State Bar of Arizona (1977) 433 U.S. 350 [97 S.Ct. 2691].)
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