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.
|
What are the ethical restrictions on a private criminal defense attorney who engages in direct mail marketing of legal services based on information concerning prospective clients charged with a crime obtained from police department records?
Truthful and non-deceptive direct mail marketing of legal services to prospective clients is constitutionally permitted. However, a targeted mailing to persons charged with a crime, seeking professional employment for pecuniary gain, is permissible only under limited circumstances and is subject to regulation under rule 1-400 and the standards adopted by the State Bar of California Board of Governors. Particular care must be taken in drafting and transmitting personalized letters to arrestees in detention facilities to avoid violations of rule 1-400 and applicable law. Moreover, the manner in which attorneys obtain information from police department records could constitute a basis for discipline independent of rule 1-400. Additionally, any compensation paid to a non-attorney business entity which obtains information from police records to prepare and distribute letters on behalf of attorneys must conform with rule 1-320.
Rules 1-310, 1-320, and 1-400 of the California Rules of Professional Conduct.
Business and Professions Code sections 6068 (a), 6101, 6102, 6106, 6152 and 6157.
The Committee has been asked to address the ethical propriety of private criminal defense attorneys seeking representation of clients charged with a crime through targeted mailings based on information obtained from police department records. The Committee has also been asked to identify factors that should be considered by attorneys in obtaining such information and communicating with arrestees in this fashion.
The issues addressed arise in the following factual context. Attorney A personally contacts local police departments to obtain the name, address, date of arrest and booking charge of persons arrested, for the purpose of using such information in the direct mail marketing of legal services. Attorney B pays a monthly fee to a non-attorney business entity for a list of potential clients with the same type of information compiled by the entity from daily booking sheets and other police "blotter" records.
Attorney A mails each potential client a personalized letter on law firm stationery with a business card. The letter describes attorney A's experience and availability for employment. The letter also stresses the severe nature of the potential penalties associated with the charge and urges the recipient not to delay contacting attorney A. Attorney B pays the business entity a flat monthly fee for compiling the list of potential clients and for preparing and mailing letters to the arrestees once the letters have been approved by attorney B. Attorney B usually follows up the letter with a phone call to the potential client.
The letters by both attorneys are sent either by first class mail, by fax, or delivered by messenger.1 Recipients of the personalized letters include arrestees who are being held in pre- trial detention facilities without bail.
The First Amendment protects soliciting legal business for pecuniary gain by sending truthful and non-deceptive letters to potential clients known by the lawyer to have specific, current legal problems. (Shapero v. Kentucky Bar Assn. (1988) 486 U.S. 466 [108 S.Ct. 1916] [The court nullified a state's advisory opinion disapproving an attorney's proposed targeted solicitation letter]; see also Cal. State Bar Formal Opn. No. 1988-105; cf. Leoni v. State Bar (1985) 39 Cal.3d 609 [217 Cal.Rptr. 423].) Although Shapero makes it clear that targeted mailings cannot be categorically prohibited (Id. at p. 476.), the Supreme Court has recognized that the application of commercial speech protection to legal advertising requires a case by case analysis. (Bates v. State Bar of Arizona (1977) 433 U.S. 350, 383 [97 S.Ct. 2691]; see also Cal. State Bar Formal Opn. No. 1982-67.)
In California State Bar Formal Opinion Number 1988-105, this Committee addressed the issue of whether attorneys may ethically seek employment by means of targeted letters sent to personal injury victims. Citing Shapero, and assuming the letters were truthful and did not contain deceptive or misleading information, this Committee concluded that the conduct of seeking employment by means of targeted letters is afforded constitutional commercial speech protection under the First and Fourteenth Amendments and is not prohibited under former rule 2-101 (predecessor to rule 1- 400).2
The same conclusion holds true for the facts of the present inquiry. The Committee finds no meaningful distinction between the facts at issue in Shapero, or considered in this Committee's Formal Opinion Number 1988-105, and the conduct of private criminal defense attorneys sending truthful and non-deceptive letters to arrestees. The targeted potential clients in Shapero were persons listed on court records as facing civil foreclosure proceedings, while here the targeted persons are arrestees who, pursuant to state and federal decisional law, are arguably entitled to the constitutional protections afforded by the Sixth Amendment.3 In California State Bar Formal Opinion Number 1988-105, this Committee found no distinction in the First Amendment protection afforded a lawyer directing letters to potential foreclosure victims in Shapero and sending letters to personal injury victims. Similarly, the specific conduct of criminal defense attorneys in actively marketing their services by mail to arrestees should be afforded the same constitutional protection. Directed personalized mailings to arrestees soliciting their representation, commonly known as "jail mail," has been defended as a means of increasing competition and benefiting clients by lowering the cost of representation. (See S.D. Cty. Bar Assn. Ethics Opn. No. 1992-3.) Thus, consistent with the holding in Shapero,4 truthful and non-deceptive personalized direct mailings to a prospective client who has been arrested are constitutionally permitted.
For purposes of rule 1-400(A), "communication" means:
. . . 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, including but not limited to the following:
(1) Any use of firm name, trade name, fictitious name, or other professional designation of such member or law firm; or
(2) Any stationery, letterhead, business card, sign, brochure, or other comparable written material describing such member, law firm, or lawyers; or
. . .
(4) Any unsolicited correspondence from a member or law firm directed to any person or entity.
Attorney A's letters, as well as those sent on behalf of attorney B, contain messages concerning the availability for employment and are directed to prospective clients. The letters utilize law office letterhead and stationery and otherwise identify the attorneys by name. The letters, as well as attorney A's enclosed business cards, are communications within the meaning of rule 1- 400(A).
Direct mail marketing, which is the subject of this inquiry, generally will not constitute a prohibited solicitation under rule 1-400(B). For purposes of rule 1-400(B), a "solicitation" means 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.
Personalized letters sent to arrestees not known to be represented by counsel are not "solicitations" under rule 1-400(B) if sent by mail or by equivalent means, which includes delivery by messenger.5 In contrast, telephone or in-person contacts by the attorneys or their agents with such potential clients is not permitted, even after the letters are received, unless an arrestee responds to the letter and requests such contact. (See rule 1- 400(C).)6 Thus, it would be improper for attorney B to telephone or make in-person contact with a recipient of the letter unless the potential client responds to the letter and requests such contact.
Delivery of the letters by means of facsimile transmission is not expressly addressed by rule 1-400. However, the faxing of advertisements presents specific statutory problems. 47 United States Code section 227(b)(1) (part of "The Telephone Consumer Protection Act of 1991") provides, in part, that "[i]t shall be unlawful for any person within the United States--. . . #(C) to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine . . . ." This prohibition has been upheld against First Amendment challenge in Destination Ventures, Ltd., et al., v. Federal Communications Commission, et al. (9th Cir. 1995) 46 Fed.3d 54.) There appears to be no exception in The Telephone Consumer Protection Act of 1991 for attorney advertising. Accordingly, to the extent that the letters are "advertisements" within the meaning of The Telephone Consumer Protection Act of 1991, neither Attorney A nor Attorney B may deliver them by means of facsimile transmission as such conduct constitutes a violation of federal law. As we discuss later, in certain instances an attorney's violation of non-disciplinary statutory law can give rise to discipline under Business and Professions Code sections 6068(a), 6101, 6102 or 6106.7
Neither attorneys A and B, nor their agents, may direct letters to, or otherwise communicate with, prospective clients known to be represented by counsel as such conduct would constitute a solicitation. (Rule 1-400(B)(2)(b); cf. rule 2-100.) To know that a person is represented by counsel means to have actual knowledge of the fact. However, an attorney's knowledge may be inferred from the circumstances. (See ABA Model Rules [Terminology] ¶ 5.) The Committee believes there are circumstances in criminal practice that would put a lawyer on notice that a particular arrestee is represented by counsel within the meaning of rule 1-400(B)(2)(b). For example, if the arrestee had been brought before a magistrate or if an arraignment had occurred prior to the communication, it could be inferred that the attorney knows the intended recipient of the communication is represented by counsel in the matter.8 Attorney B cannot avoid the application of the rule simply by purchasing a list of potential clients compiled by a non-attorney business entity. Depending on the information obtained from the police department records, both attorneys A and B may be required to make reasonable inquiry as to whether a particular arrestee is represented by counsel before mailing the letter.9
Since the letters are communications within the meaning of rule 1- 400(A), they must conform to the requirements of subdivisions (1) through (5) of rule 1-400(D). The letters may not contain any untrue statements or any matter which is false, deceptive or which tends to confuse, deceive or mislead the recipient. (Rule 1- 400(D)(1)-(2).) Attorney A should use caution in discussing the nature of the charge or the potential penalties associated with the charge against a particular arrestee. Attorney B is responsible for the content of the letters drafted by the business entity and should review each letter carefully to ensure that it is accurate and will not tend to confuse, deceive or mislead the recipient.
The letters may not "[o]mit to state any fact necessary to make the statements made, in the light of circumstances under which they are made, not misleading to the public; . . . ." (Rule 1-400(D)(3).) For instance, if the letter implies that the attorney learned of the arrestee's identity or the charge as a result of having superior knowledge or contacts, the attorney may have to inform the arrestee how the lawyer obtained the information about the potential client and the charge depending on the circumstances to insure that the communication is not misleading in light of the other statements in the letter.
The letters may not be transmitted in a "manner which involves intrusion, coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct; . . . ." (Rule 1-400(D)(5).) The status of the potential client as a person who has recently been arrested and charged with a crime should not, by itself, invoke subdivision 5 of rule 1-400(D). However, particular circumstances, such as the age, the physical and mental condition of the arrestee, the nature of the charge, the bail status of the arrestee and the mode and timing of the communication may pose a risk that the attorney will be found to have exploited the potential client's susceptibility to the point that rule 1-400(D)(5) is violated. Florida Bar v. Went For It, Inc. (1995) ___ U.S. ___ [115 S.Ct. 2371]. The protection of privacy rights of targeted recipients of direct-mail solicitations, as well as preventing the erosion of public confidence in the legal professions engendered by such repeated invasions, are substantial state interests that will support narrowly tailored time, place and manner restrictions on targeted direct mail solicitations. Florida Bar v. Went For It, Inc. (1995) ___ U.S. ___ [115 S.Ct. 2371]; cf. Central Hudson Gas & Elec. Corp. v. Public Service Comm'n of New York (1980) 477 U.S. 557, 564-565 [100 S.Ct. 2343, 2350-51].
Taken together, these requirements mandate that private defense attorneys use great care in drafting the contents of personalized letters and in transmitting the letters to persons charged with a crime, so as to avoid violating rule 1-400(D). Attorney B may not avoid the requirements of rule 1-400(D) by purchasing a compiled list of potential clients from a non-attorney business and allowing letters to be sent by the business on his or her letterhead. Depending on the circumstances, it may be advisable for B to make reasonable inquiry into the particular circumstances of each arrestee's situation before approving the letters. Attorney A should take care not to stress the seriousness of the charge or the potential penalties in a manner designed to create fear or intimidate the recipient of the letter. The statements made in the letters must be entirely accurate, which may be difficult to ascertain at the outset of a case because all of the factors affecting the ultimate penalty may not be known.
The State Bar of California Board of Governors has adopted standards as to communications which are presumed to violate rule 1-400. The standards are used as presumptions affecting the burden of proof in disciplinary proceedings as defined in Evidence Code sections 605 and 606. Attorneys A and B are subject to these standards in the dissemination of "jail mail" to potential clients. For example, a "communication" which contains a guarantee, warranty or prediction regarding the result of the case, or which contains testimonials about or endorsements of the lawyer, without an expressed disclaimer, will be presumed to be violative of the rule. (Rule 1-400(E), stds. 1 & 2.) Criminal defense attorneys must use care not to deliver the personalized letters to potential clients whom they know, or should reasonably know, are in such physical, emotional, or mental state that the person would not be expected to exercise reasonable judgment as to retention of counsel. (Rule 1- 400(E), std. 3.)
Targeted arrestees, merely by virtue of their status as arrestees, arguably could be categorized as persons who are in such a physical, emotional or mental state that they would not be expected to exercise reasonable judgment as to the retention of counsel. The argument runs that there is a potential for abuse inherent in sending "jail mail" to persons recently arrested, particularly those who are incarcerated, and that the prospective client will feel overwhelmed by the situation which in turn enhances the possibility of undue influence, intimidation, and overreaching. However, as Justice Brennan made clear in Shapero, "The relevant inquiry is not whether there exists potential clients whose `condition' makes them susceptible to undue influence, but whether the mode of communication poses a serious danger that lawyers will exploit any such susceptibility." (Shapero v. Kentucky State Bar Assn., supra, 486 U.S. at p. 474.) Consistent with this principle, the mere status of the targeted potential clients as arrestees is not sufficient by itself to justify an application of rule 1- 400(E), standard 3.
The issue of whether the presumption in standard 3 will be invoked depends on the particular circumstances in each case. (Cf. Bates v. State Bar of Arizona, supra, 433 U.S. 350 [First Amendment claims will depend on a case by case analysis].) Standard 3 implements the explicit prohibition stated in rule 1-400(D)(5). As discussed above, the totality of the circumstances, including the age, physical and mental condition of the arrestee, the seriousness of the charge, whether the arrestee is incarcerated, and the method and timing of the communication are relevant factors to be considered. Prudent criminal defense attorneys should be aware of these factors and make reasonable inquiry as to the status of the particular arrestee before drafting and sending "jail mail." (See Ohralik v. Ohio State Bar Assn. (1978) 436 U.S. 447; [98 S.Ct. 1912].)
Business and Professions Code section 6152 prohibits solicitation of legal business by a runner or capper "in and about the state prisons, county jails, city jails, city prisons, or other places of detention of persons, . . . ."10 The advertising standards include any communication transmitted at or en route to a hospital, emergency care center, or other health care center. (Rule 1- 400(E), std. 4.) These regulations when read together suggest that jails and other detention facilities are areas that may require greater protection, and lawyers should exercise greater care about direct mail marketing in the vicinity of these facilities.
Rule 1-400 (E), standard number 5 presumes a violation of rule 1- 400 in the case of "[a] `communication', except professional announcements, seeking professional employment for pecuniary gain, which is transmitted by mail or equivalent means which does not bear the word `Advertisement', `Newsletter' or words of similar import in 12 point print on the first page. If such communication, . . . is transmitted in an envelope, the envelope shall bear the word `Advertisement,' `Newsletter' or words of similar import on the outside thereof."11 Because the letters seek professional employment for pecuniary gain and will be transmitted by mail or equivalent means, standard 5 requires that the first page and the envelope be marked with the term "advertisement" or similar identification to avoid the presumption that the communication is violative of rule 1-400.
Recently enacted Business and Professions Code sections 6157-6157.7 provides statutory regulations of attorney advertising. These statutes prohibit false, misleading or deceptive advertising and specifically regulate use of guarantees, warranties, impersonations, dramatizations and statements concerning immediate cash settlements and the availability of contingent fee agreements. The statutory scheme is limited by its own terms to conduct falling within the definition of "advertising" and "advertisement."12 The language of the definition contrasts a mailing to the general public with a mailing to a specific person. The former mailing is included as one type of print medium intended to be within the scope of the statutory scheme but the latter mailing is to be excluded. In the factual context of this inquiry, the letters are personalized and transmitted only to specific persons identified from police department records. While it can be argued that the statutory scheme applies under a broad reading of the definition of "advertising" and "advertisement," such construction seems inconsistent with a plain meaning interpretation of the language used in the definition. The Committee believes that the plain meaning of the definition in Business and Professions Code section 6157(b) refers to non-personalized, mass mailings typically disseminated according to broad classifications such as geographic groupings. (See Webster's Ninth New Collegiate Dict. (9th ed. 1983) p. 510 ["generally" means in part "in a general manner . . . in disregard of specific instances and with regard to an overall picture." "Public" means in part "of, relating to, or affecting all the people or the whole area of a nation or state."]) This plain meaning interpretation is logical because a mass mailing letter is qualitatively similar to the other forms of advertising media listed in the definition (i.e., television, radio, newspapers and billboards) while a targeted and personalized "jail mail" letter is qualitatively different. Additionally, another reason for narrowly reading of the definition is that such a reading embraces a distinction discussed in Shapero. In Shapero, the court compares and contrasts a "targeted" mailing with a "mass-mailing to a general population." (See Shapero v. Kentucky State Bar Assn., supra, 486 U.S. at pp. 473-474.) Therefore, in view of the definition of "advertising" and "advertisement," the recently enacted Business and Professions Code sections 6157-6157.7 do not apply to the facts of the present inquiry.
An attorney may be subject to discipline if the manner in which the information is obtained violates the privacy rights of the arrestee or violates other state or federal laws.13 As this Committee observed in California State Bar Formal Opinion Number 1988-105, "the lawyer should take care to ensure that, in obtaining from a third party the name and address of the injured employee and the facts surrounding the injury, the third party has not, by disclosure of that information, violated the employee's privacy rights or other state or federal laws. If in fact the employee's privacy rights or other state or federal laws are violated by the disclosure, the use of such information could be illegal and subject the lawyer to discipline." (Cal. State Bar Formal Opn. No. 1988-105 at p. 2.) Analysis of legal issues such as privacy rights or other possible violation of state or federal law is beyond the purview of this Committee.14 However, since there is no definitive case law specifically addressing the availability of arrestee information for purposes of "jail mail" and, furthermore, because of the potential for legislative activity on this issue, we discuss the potential grounds for discipline that could be asserted if a violation of privacy rights is found to have occurred. Two possible bases for discipline are: (1) a violation of Business and Professions Code section 6068(a); and (2) commission of an act or crime involving moral turpitude.
Business and Professions Code section 6068(a) provides that "[i]t is the duty of an attorney to do all of the following: (a) To support the Constitution and laws of the United States and of this State."15 Section 6068(a) has been found to provide a basis for discipline when an attorney violates (i) a statute not specifically relating to the duties of attorneys; (ii) a section of the State Bar Act which is not, by its terms, a disciplinable offense, or (iii) an established common law doctrine which governs the conduct of attorneys and which is not governed by any other statute. (In the Matter of Lilley (Review Department 1991) 1 Cal. State Bar Ct. Rptr. 476; see also Sands v. State Bar (1989) 49 Cal.3d 919, 931 [264 Cal.Rptr. 354] [attorney who pled guilty to bribing a DMV official violated Bus. & Prof. Code, § 6068 (a)]; Slavkin v. State Bar (1989) 49 Cal.3d 894, 902 [264 Cal.Rptr. 131] [an attorney who was guilty of violating Health & Saf. Code §§ 11350 & 11550 thereby violated Bus. & Prof. Code § 6068 (a)].)
The Business and Professions Code also provides that commission of an act or crime involving moral turpitude is a cause for discipline. A conviction of a felony or misdemeanor, involving moral turpitude, constitutes a cause for disbarment or suspension. (Bus. & Prof. Code, § 6101 (a).) "The commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension." (Bus. & Prof. Code, §6106.) Whether or not an attorney's conduct involves moral turpitude is a question of law. The test is the same whether or not the act constitutes a criminal offense. (See, e.g., In the Matter of Bleecker (Review Department 1990) 1 Cal. State Bar Ct. Rptr. 113.) The Supreme Court has defined moral turpitude as "[a]n act contrary to honesty and good morals." (See Kitsis v. State Bar 23 Cal.3d 857, 865 [153 Cal.Rptr. 836][attorney disbarred for solicitation of over 200 potential clients] and In the Matter of Nelson (Review Department 1990) 1 Cal. State Bar Ct. Rptr. 178, 187 [attorney suspended for conducting law practice founded entirely on clients obtained through illegal running and capping].)
In view of the extensive reach of Business and Professions Code section 6068(a) and the Supreme Court's broad definition of moral turpitude, we conclude that an attorney's participation in a violation of privacy rights or a violation of state or federal laws concerning criminal or civil exposure for breaching standards of confidentiality may subject an attorney to discipline.
Attorney B must conform to the requirements of rule 1-320 in compensating the non-attorney business entity for obtaining information from the police department records and for preparing and distributing letters on B's behalf. This means that attorney B may not directly or indirectly share legal fees received as a result of the solicited engagements with the non-attorney business entity. (Rule 1-320(A).) Attorney B also may not compensate, give, or promise anything of value to the business entity for the purpose of recommending or securing B's employment, or as a reward for having made such a recommendation resulting in B's employment. (Rule 1-320(B).)
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.
A solicitation shall not be made by or on behalf of a member or law firm to a prospective client with whom the member or law firm has no family or prior professional relationship, unless the solicitation is protected from abridgement by the Constitution of the United States or by the Constitution of the State of California.
`Advertise' or `advertisement' means any communication, disseminated by television or radio, by any print medium, including, but not limited to, newspapers and billboards, or by means of a mailing directed generally to members of the public and not to a specific person, that solicits employment of legal services provided by a member, and is directed to the general public and is paid for by, or on the behalf of, the member.
| . |