Introduction:
Most of us have seen the increasingly common attorney marketing advertisements on television, billboards, the internet, and even buses. Most such advertisements are for personal injury attorneys, but there are also many for landlord-tenant law, wills and trusts, and myriad other areas of the law.
This type of advertising was strictly prohibited only thirty-five years ago. Attorneys were not allowed to market to the public and utilize public advertising as it was considered a violation of the Code of Ethics that each state imposed on all members of the Bar. However, thirty-five years ago a series of cases held that such bans on advertising were not only in violation of the free speech rights of attorneys but actually harmed the consuming client in that the only way to determine good attorneys available was by word of mouth. As the years passed, states eliminated the bans on advertising increasingly, and now such advertisements are the rule.
But there is one particular area of seeking clients that is still prohibited to attorneys in almost all states and that is “in-person solicitation of business.” Such direct communication with potential clients remains banned by the various Codes of Ethics and this article shall discuss that ban in California.
The Basic Law:
The restrictions are found in the California Rules of Professional Conduct (Ethics Rules) for attorneys, and more specifically in Rule 7.3.
Rule 7.3 regulates the marketing of legal services through direct contact with a potential client, either by real-time communication, such as in-person delivery or by telephone, e-mail, or text, or by directly targeting a person known to need specific legal services.
Note that the law is Statewide, and each State is allowed to enact and enforce its own laws on the matter. Further, each State will have its own enforcement procedures to ensure the rule is followed. California’s rules do not necessarily mesh with the other States.
The Rule provides as follows:
Rule 7.3 Communications Concerning a Lawyer’s Services
(a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment when a significant motive for doing so is the lawyer’s pecuniary gain, unless the person* contacted:
(1) is a lawyer;
(2) or has a family, close personal, or prior professional relationship with the lawyer.
(b) A lawyer shall not solicit professional employment by written..., recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if:
(1) the person* being solicited has made known* to the lawyer a desire not to be solicited by the lawyer;
(2) or the solicitation is transmitted in any manner which involves intrusion, coercion, duress or harassment.
(c) Every written,* recorded or electronic communication from a lawyer soliciting professional employment from any person* known* to be in need of legal services in a particular matter shall include the word “Advertisement” or words of similar import on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person* specified in paragraphs (a)(1) or (a)(2), or unless it is apparent from the context that the communication is an advertisement.
(d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person, live telephone or real-time electronic contact to solicit memberships or subscriptions for the plan from persons* who are not known* to need legal services in a particular matter covered by the plan.
(e) As used in this rule, the terms “solicitation” and “solicit” refer to an oral or written* targeted communication initiated by or on behalf of the lawyer that is directed to a specific person* and that offers to provide or can reasonably* be understood as offering to provide, legal services.
Comment
[1] A lawyer’s communication does not constitute a solicitation if it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial, or if it is in response to a request for information or is automatically generated in response to Internet searches.
[2] Paragraph (a) does not apply to situations in which the lawyer is motivated by considerations other than the lawyer’s pecuniary gain. Therefore, paragraph (a) does not prohibit a lawyer from participating in constitutionally protected activities of bona fide public or charitable legal-service organizations, or bona fide political, social, civic, fraternal, employee or trade organizations whose purposes include providing or recommending legal services to its members or beneficiaries. (See, e.g., In re Primus (1978) 436 U.S. 412 [98 S.Ct. 1893].)
[3] This rule does not prohibit a lawyer from contacting representatives of organizations or groups that may be interested in establishing a bona fide group or prepaid legal plan for their members, insureds, beneficiaries or other third parties for the purpose of informing such entities of the availability of and details concerning the plan or arrangement which the lawyer or lawyer’s firm* is willing to offer. [4] Lawyers who participate in a legal service plan as permitted under paragraph (d) must comply with rules 7.1, 7.2, and 7.3(b). (See also rules 5.4 and 8.4(a).)
The rationale for that ban has been explained by the Federal Courts as follows:
The United States Supreme Court has held that in-person solicitations by or on behalf of an attorney are inherently conducive to overreaching. See Ohralik v. Ohio State Bar Association (1978) 436 US 447, 456-460, 98 S.Ct. 1912, 1918-1920; holding that states may adopt prophylactic rules against in-person solicitation for profit in order to protect potential clients from overreaching.
Further, in-person solicitation may infringe upon an individual’s right to privacy, and specifically the right to be left alone. See Florida Bar v. Went For It, Inc. (1995) 515 US 618, 625, 115 S.Ct. 2376-2377.
The United States Supreme Court holding above allowed each State to enact restrictions on such activities under its rules of professional conduct, such as Rule 7.3 in California, and by the late 1980s, most states had done so.
Analysis:
Note that it is not advertising or marketing that is prohibited but the direct personal solicitation for business. Thus, the ads could be showered on a potential client so long as direct communication in any manner is avoided. It is presumed that an attorney will be inherently overbearing and intimidating to the average potential client, so it is the method of communication itself that is barred, not just any communication.
That rationale is why the exceptions of past relationships, either professional or personal or family, allows such direct communication. It is presumed that the past relationship will negate the inherent intimidation otherwise likely to occur.
Note also that the use of an agent, e.g. someone employed or used by the attorney to make a direct appeal, will be treated as equivalent to the attorney, him or herself, violating the rules.
And it does not matter if the attorney is soft-spoken, does not intentionally intimidate, or is a small person speaking to a football player potential client: the Rule prohibits anyone from even beginning such a solicitation, regardless of what is actually said or done.
There is a rather odd exception relating to pecuniary interest. Presumably, if the attorney can demonstrate that his or her primary goal was not to earn money, then such communication is allowed. How such a goal can be demonstrated is not described, but one must assume that there was an overriding nonpecuniary goal that the attorney can demonstrate was why he or she was there.
Note that successful retention of services is not a requirement for violation of this Rule and, indeed, one can expect competing legal counsel to be the likely party that reports such conduct to the Bar whether or not the violator was successful in gaining the business.
Enforcement:
Violation of the Code of Ethics is a serious matter for legal counsel. The Bar can impose various sanctions ranging from private reprimand to disbarment. Disbarment is an extreme remedy since it effectively eliminates the attorney’s ability to make a living forever, a multi-million-dollar penalty. Suspension for a period of time or public reprimand are more likely sanctions but a single incident of violation of 7.3 may not even result in more than a private reprimand. That private reprimand, however, is kept in the Bar records and a repeat of the violation will be treated far more seriously.
The Bar will engage in its own investigation and proceedings. The attorney will be allowed to defend him or herself and the complaining party will be allowed to present evidence of the violation. Bar proceedings are taken very seriously by attorneys who normally hire their own legal counsel to defend themselves.
Conclusion:
It can come as a shock to a naïve attorney to discover that he or she is banned from directly approaching a potential client. One attorney known to the writer was outraged. He claimed he was simply trying to get to an injured party before the insurance company obtained a quick and cheap settlement. He felt the Bar was prohibiting him from protecting the potential client.
Perhaps. But the Bar has determined, with the support of the Appellate Courts, that the benefit of such actions is greatly outweighed by the harm caused to the public at large.