Ethics Opinon 2000-1

ISSUE
May an attorney who acts as a Good Samaritan (1) at an accident scene ethically give his (2) business card to one of the people involved in the accident for reasons other than enlisting legal business?

DIGEST
An attorney's delivery of his business card to anyone who might become a potential client is a "communication" under rule 1-400 (A) of the Rules of Professional Conduct. As such, it is subject to the applicable prohibitions on false, misleading, and deceptive messages. The content of the business card must satisfy these rules. However, the "communication" is not a "solicitation" under rule 1-400 (B) because a significant motive for making the "communication" is not pecuniary gain. Therefore, Standard (4) of Rule 1-400, which makes any "communication" by an attorney at the scene of an accident a presumptive violation of Rule 1-400(D), is interpreted to exclude business cards from attorneys who were acting as Good Samaritans.

AUTHORITIES INTERPRETED
Rule 1-400 of the State Bar of California Rules of Professional Conduct

STATEMENT OF FACTS
An attorney who unexpectedly sees an accident offers to help a person involved in the accident and gives the person a business card in case the person needs to contact him as a witness.

DISCUSSION
Rule 1-400 of the State Bar of California Rules of Professional Conduct ("Rules") addresses the propriety of any communication between an attorney and a person who is not his client.

Rule 1-400(A) defines a "communication" as:

". . . any message or offer made by or on behalf of a member concerning the availability for professional employment. . . directed to any former, present, or prospective client, including but not limited to the following:
. . .
(2) [a]ny . . . business card, . . . or other comparable written material describing such member . . . . (3)

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 . . . . "

Rule 1-400(C) states:

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 abridgment by the Constitution of the United States or by the Constitution of the State of California. . . . .

Based on the foregoing definitions, the attorney's delivery of his business card is a "communication." under Rule 1-400(A) because the person who received it is a potential client. However, the "communication" is not a "solicitation" under Rule 1-400(B). True, the attorney delivered the business card "in person" to the potential client. But, the attorney's motive for making the "communication" was not for pecuniary gain; it was to be a Good Samaritan. Therefore, without more, the "communication" does not violate Rule 1-400(C), which prohibits in person "communications" where a significant motive is pecuniary gain unless such communications are constitutionally protected.

The analysis does not end here, however. Rule 1-400 regulates "communications" that do not constitute "solicitations." This Rule includes both "content" restrictions and blanket "time, place, and manner" restrictions on "communications." Those restrictions are bolstered by Standards to Rule 1-400 which describe specific conduct which is presumed to violate the Rules. (4) (Rule 1-400, Standards.)

The Rule's content restrictions are set forth in subparagraphs (D)(1) through (4) and (6). They require the "communication" not contain an untrue statement or any matter or presentation which is false, deceptive, or tends to confuse, deceive, or mislead the public; or, fail to indicate by its context that is a communication; or, incorrectly refer to the member as a "certified specialist." (Rule 1-400 (D)(1)-(4), (6).) If the attorney's business card is the typical genre and its contents are truthful, it complies with Rule 1-400(D). (5)

The Rule's ban on "communications" at a certain "time" or "place," or in a certain "manner" is included in subparagraph (D)(5). It provides that a "communication" shall not "[b]e transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct. Standard (4) further provides that "[a] "communication" which is transmitted at the scene of an accident, . . ." is a presumptive violation of Rule 1-400. (Rule 1-400, Standard (4).) (6) This Standard applies regardless of the truth of the "communication" or its effect on the victim. (See, Vapnek, P., et al., California Practice Guide: Professional Responsibility (The Rutter Group 2000) §2:355.) (7) Taken literally, an attorney who does what any non-attorney Good Samaritan would do at an accident scene, hand a person in a crisis a business card in case the person needs a witness, presumptively violates Rule 1-400 unless the attorney has the presence of mind and supplies to write his contact information on a blank piece of paper before delivering it. Indeed, even if the attorney had the foresight to strike out the word "attorney" on his card and write in the word "witness," he would still presumptively violate Rule 1-400 based on a literal reading of Standard (4). What Good Samaritan, attorney or not, thinks about much of anything but helping the people in a crisis?

The consequence of this presumptive violation is that the attorney must prove that the delivery of his business card was not substantially motivated by pecuniary gain. (Rule 1-400(E).) In accident scene situations, the only evidence is usually the statements of the participants, rendering it difficult or impossible to obtain reliable proof of what actually took place. (See, Ohralik v. Ohio State Bar Ass'n, supra., 436 US at 466, 98 S.Ct. at 1924.) Therefore, an attorney with the burden of proof is not likely to overcome it by contradicting another witness or professing his good intentions. (8) Consequently, the fact that the attorney may rebut the presumption of Standard (4) is of little meaningful consequence.

Such a literal interpretation would render Standard (4) unconstitutional because it would ban all "communications," not only "communications" for profit. "Communications" not primarily directed toward client solicitation "must receive at least prima facie First Amendment protection." (Jacoby v. State, (1977) 19 C3d 359, 371, 138 CR 77, 85.) This requires that the "communication" viewed in its entirety must serve no discernible purpose other than attracting clients. (Id.) For example, a publicly circulated advertisement for seminars in which an attorney described himself as "The King of Torts" was constitutionally protected because it was primarily directed at facilitating success of the seminars rather than generating business for the attorney's law practice. (Belli v. State Bar (1974) 10 C3d 824, 833, 112 CR 527, 544-534.) Surely, acting as a Good Samaritan is a discernable purpose other than attracting business.

The traditional bans on direct communications that are constitutionally permitted involve only "communications" for profit. (Ohralik v. Ohio State Bar Ass'n (1978) 436 US 447, 465; 98 S.Ct. 1912. See also, Florida Bar v. Went For It, Inc. (1995) 515 US 618, 633-635, 115 S.Ct. 2371, 2380-2381.) The rationale for such blanket prohibitions on in person "communications" for profit is that such direct "communications" (i) may exert pressure on the person and deprive him of the opportunity to make a reasoned decision, (ii) entails a significantly greater chance of abuse because lawyers are trained in the art of persuasion, and (iii) these dangers are difficult to regulate because they are generally not observable. (Ohralik v. Ohio State Bar Ass'n, supra. at 465.) Consequently, proof of actual harm is not required for these types of violations. (Id.) Purportedly, this rationale is the basis for the blanket prohibition in Standard (4). (Vapnek, supra., at §2:356.) But, Standard (4) ignores the threshold constitutional inquiry by assuming that attorneys never act as Good Samaritans, and only act for profit, at accident scenes.

Based on common experience, constitutional principles, the rationale underlying Standard (4), rules that prefer an interpretation which gives effect to one which renders void (Civ. Code §3541), and the public policy of encouraging Good Samaritans, Standard (4) should be interpreted to exclude business cards delivered by an attorney while acting as a Good Samaritan at an accident scene. (9) This interpretation would require the State Bar prove that the attorney's delivery of his business card to a person at an accident scene was substantially motivated by pecuniary gain, rather than make an honorable attorney prove his innocence in a virtually insurmountable context.

(1) A "Good Samaritan" is "one ready and generous in helping those in distress." Webster's Ninth Collegiate Dictionary.

(2) Further references to the masculine gender are for linguistic convenience and intended to apply equally to the feminine gender.

(3) "Communication" also includes "[a]ny use of firm name, trade name, fictitious name, or other professional designation of such member or law firm; or [a]ny stationery, letterhead, . . ., sign, brochure, or other comparable written material describing such member, law firm, or lawyers; or [a]ny advertisement (regardless of medium) of such member or law firm directed to the general public or any substantial portion thereof; or [a]ny unsolicited correspondence from a member or law firm directed to any person or entity." (Rule 1-400(A).)

(4) "Presumptions affecting the burden of proof" means that presumption defined in Evidence Code sections 605 and 606. (Rule 1-400(E) "Presumptions affecting the burden of proof" means that presumption defined in Evidence Code sections 605 and 606. (Rule 1-400(E).) The Evidence Code sections state:

605. A presumption affecting the burden of proof is a presumption established to implement some public policy other than to facilitate the determination of the particular action in which the presumption is applied, such as the policy in favor of establishment of a parent and child relationship, the validity of marriage, the stability of titles to property, or the security of those who entrust themselves or their property to the administration of others.

606. The effect of a presumption affecting the burden of proof is to impose upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact.

Thus, an attorney whose conduct is presumed to violate Rule 1-400 bears the burden of proving that such conduct does not violate Rule 1-400(C) or (D).

(5) Note that Business and Professions Code section 6158.2, which only applies to electronic advertising, creates a presumption that the information normally contained in business cards (name, law firm name, addresses, telephone numbers, and the designation "lawyer," "attorney," "law firm," or the like) comply with the law regarding electronic advertising by attorneys if the message as a whole is not false, misleading, or deceptive. (Bus. & Prof. Code § 6158.2 (a). No similar presumption exists for written advertisements. (See, Bus. & Prof. §6157, 6157.1) By analogy, however, a typical business card should enjoy the same presumption.

(6) Standard 3 addresses communications to potential clients that the attorney should know are in such a physical, emotional, or mental state that the person would not be expected to exercise reasonable judgment as to the retention of counsel. We do not address this Standard because it is beyond the scope of this Opinion.

(7) At least one authority believes the delivery of a business card without any comment to a victim at an accident scene is a presumptive violation. (Vapnek, P., et al., California Practice Guide: Professional Responsibility (The Rutter Group 2000) §2:360.)

(8) Potential complainants include, for example, the attorney representing the wrongdoer and seeks to impeach the Good Samaritan's credibility by pointing out the breach of ethical rules.

(9) Cf. Vapnek, Ibid., at §2:355-2:360. A trier of fact should have no trouble reaching conclusions about the motivation for an attorney's communication at an accident scene. For example, if the attorney delivers his business card in silence and without giving any aid, that conduct speaks volumes about the attorney's motivation. (Id.) Similarly, the fact that the attorney subsequently represents one of the people involved in the accident would be probative. For the same reasons, the communications defined in Rule 1-400(A)(1) (comments about an attorney's job) should not trigger the Standard (4) presumption in the same setting. It is commonplace for Good Samaritans to reveal their occupations during casual conversation that often occurs at an accident.

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.