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.
|
Is it a violation of the California Rules of Professional Conduct for a lawyer to send an investigator to interview witnesses to an accident even though the lawyer at the time does not represent any client in a matter relating to the accident?
Instigating such "clientless" investigations is fraught with risk that the investigation will involve a violation of rule 1-400(C) of the California Rules of Professional Conduct. If, in the course of an in-person or telephonic interview with an accident victim or a witness who may have legal liability or claims related to the accident, the investigator, with the lawyer's express or implicit authorization, refers a potential client to the lawyer or conveys any other form of message concerning the lawyer's availability for professional employment, the lawyer will be responsible for the investigator's "solicitation". In such case, unless the solicitation is protected from abridgment under the United States Constitution or the California Constitution, the lawyer who hired the investigator will herself be in violation of rule 1-400(C) of the California Rules of Professional Conduct and Business and Professions Code section 6152, subdivisions (a)(1) and (a)(2).
Rule 1-400 of the Rules of Professional Conduct of the State Bar of California.
Business and Professions Code section 6152, subdivisions (a)(1) and (a)(2).
Rule 1-400(A) of the California Rules of Professional Conduct1 defines a "communication" as "any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client . . . ."
Rule 1-400(B) defines a "solicitation" as:
. . . any communication:
(1) Concerning the availability for professional employment of a member or a law firm in which a significant motive is pecuniary gain; and
(2) Which is;
(a) delivered in person or by telephone, or
(b) directed by any means to a person known to the sender to be represented by counsel in a matter which is a subject of the communication.
When a lawyer who is not representing any client in a matter related to a particular accident hires someone to perform an investigation of that accident, contact by the investigator with the victims is inherently suspect.2 Victims are likely to be greatly affected by the incident and, thus, more susceptible to being influenced unduly by the solicitations of the lawyer's investigator. Any victim of an accident - including those emotionally stricken though not physically injured - might be a potential client. Witnesses who may have legal liability or claims related to the accident are also potential clients and therefore potential targets of prohibited solicitations.
Any message or offer that the investigator might convey to any such victim concerning the lawyer's availability for professional employment will be a "communication" under rule 1-400. Any such communication that the investigator delivers in-person or by telephone to the potential client would be a "solicitation" as long as a "significant motive" of the communication is pecuniary gain. (Rule 1-400(B).) Presence of such a motive may be inferred from the circumstances. For example, in the course of an interview with an accident victim if an investigator hired by a plaintiffs personal injury attorney no more than simply identifies the lawyer for whom she works (cf. rule 1-400(A)(1)), a "solicitation" may be found to have occurred, as the circumstances of the communication - a clientless investigation - give rise to a strong inference that the predicate "significant motive of pecuniary gain" is present. (Rule 1-400(B).)
Solicitations, whether made by or on behalf of a lawyer, are generally prohibited under rule 1-400(C), but a solicitation may fall outside the general proscription of rule 1-400(C) if it is protected from abridgment under the United States Constitution or the California Constitution. The United States Supreme Court has upheld a blanket prohibition of in-person lawyer solicitations (Ohralik v. Ohio State Bar Assn. (1978) 436 U.S. 447 [98 S.Ct. 1912]), but its recent opinion in Edenfield v. Fane (1993) U.S. [113 S.Ct. 1792] (striking down a similar prohibition against in-person solicitations by or on behalf of accountants) leaves it unclear how far it will apply the holding in Ohralik beyond the particular facts of that case. (But see In the Matter of Scapa and Brown (Review Dept. 1993) 2 Cal. State Bar. Ct. Rptr. 635, 652, in which the State Bar Court analyzed both cases and concluded that the ban on in-person lawyer solicitations is still constitutional.)
Even if, in certain situations, a "solicitation" might not be banned outright without violating the First Amendment, the lawyer should be mindful that rule 1-400 imposes a second tier of regulation - that applicable to any "communication" - with which the attorney must ensure that her investigator complies. In many circumstances, the investigator's communication made on behalf of the lawyer will either violate rule 1-400(D) per se or be presumed to violate rule 1-400. For example, the lawyer must always make certain that the investigator transmitting any communication "indicate clearly, expressly, or by context, that it is a communication or solicitation, as the case may be . . ." (rule 1- 400(D)(4)), and that the investigator avoid communicating in a manner that ". . . involves intrusion, coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct." (Rule 1-400(D)(5).) The communication may not contain any untrue statement or be presented in a manner which is confusing or misleading, nor may the communication omit to state any fact necessary to make the statements made, in light of circumstances under which they are made, not misleading. (Rules 1-400(D)(1), (D)(2) and (D)(3).) Moreover, any communication delivered by the investigator at the scene of an accident or otherwise to a potential client whom the lawyer should reasonably know to be 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 is presumed to violate rule 1-400. (Rule 1-400(E), stds. 3 and 4.)
The focus of rule 1-400 is on the message conveyed by the lawyer or, in this case, by the investigator acting with the express or implicit authority of the lawyer. If there has been a violation of rule 1-400 in the course of a clientless investigation, the fact that the lawyer later refrains from representing the individual to whom the communication was directed will not abrogate the ethical violation.
If the investigator with the explicit or implicit authorization of the lawyer has engaged in a prohibited solicitation on behalf of the lawyer, both the lawyer and the investigator may also be guilty of misdemeanors under Business and Professions Code section 6152, subdivisions (a)(1) and (a)(2).
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 persons or tribunals charged with regulatory responsibilities or any member of the State Bar.
| . |