Ethics Opinon 1978-2

SUBJECT: CABRILLO PACIFIC UNIVERSITY COLLEGE OF LAW--BEACH AREA FREE CLINIC

I
QUESTION PRESENTED

In view of the recent decisions by the United States and California Supreme Courts, is it proper for a legal clinic to list the members of the Bar who offer their assistance to the Clinic?

II
SUMMARY

Yes. In view of the Jacoby and Bates cases, infra, legal clinics may publicize the names of the attorneys who participate in them. However, said publicity must be made in a professional and dignified manner. Since listing the names of participating attorneys will not be false, fraudulent, misleading, deceptive, self-laudatory, or unfair, the clinic may include the attorneys' names.

III
STATUTES AND CANONS

A.B.A. Code of Professional Responsibility Disciplinary Rule 2-101(B) provides, in relevant part, that

". . . a lawyer recommended by, paid by or whose legal services are furnished by, a qualified legal assistance organization may authorize or permit or assist such organization to use means of dignified commercial publicity, which does not identify any lawyer by name, to describe the availability or nature of its legal services or legal service benefits."

Former Rule 21 of the Rules of Professional Conduct of the State Bar of California provided that publicizing of a legal aid plan or program was not a violation as long as names of participating members of the State Bar were not publicized. On January 1, 1975, Rule 21 and the other Rules of Professional Conduct were replaced by rules very similar to the A.B.A. Code of Professional Responsibility. Rule 2-104(F) of the California Code of Professional Responsibility carries the proscription of A.B.A. 2-101(B).

The Supreme Court of California recently decided a case that raises questions regarding the validity of California Rule 2-104(F). Jacoby v. State Bar, 19 Cal.3d 359, 138 Cal.Rptr. 77, 562 P.2d 1326 (1977). The court in Jacoby permitted a law firm to call itself "The Legal Clinic of Jacoby and Meyers" and communicate with news media about the operation of the clinic. The United States Supreme Court in addressing itself to a similar situation permitted a private law firm that offered low cost legal services to poor people who could not qualify for public assistance programs to call itself the "Legal Clinic of Bates and O'Steen". Bates v. State Bar, ___ U.S. ___. 97 S. Ct. ___, 53 L.ED.2d 810, 45 U.S.L.W. 4895 (1977).

In light of Bates v. State Bar, ___ U.S. ___,97 S. Ct. ___, 53 L.ED.2d 810, 45 U.S.L.W. 4895 (1977), the A.B.A. has proposed amendments to the Code of Professional Responsibility. Of the two amendments that have been submitted to the various state bar associations, "Proposal A" is the most restrictive and currently being endorsed by the A.B.A. "Proposal A" deletes DR 2-101(B) as it stands no and instead DR 2-101 appears, in relevant part:

DR 2-101 Publicity.

(A) A lawyer should not, on behalf of himself, his partner, associate or any other lawyer affiliated with him or his firm, use, or participate in the use of, any form of public communication containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim.

(B) In order to facilitate the process of informed selection of a lawyer by potential consumers of legal services, a lawyer may publish or broadcast, subject to DR 2-103, the following information in print media distributed or over radio broadcasted in the geographic area or areas in which the lawyer resides or maintains offices or in which a significant part of the lawyer's clientele resides, provided that the information disclosed by the lawyer in such publication or broadcast complies with DR 2-101(A), and is presented in a dignified manner:

(1) Name, including name of law firm and names of professional associates; addresses and telephone numbers; . . .

(17) Prepaid or group legal services programs in which the lawyer participates; . . .

(For full text of "Proposal A" DR 2-101 Publicity, see Appendix A.)

Proposed DR 2-101(A) enunciates the rule set forth in Bates v. State Bar, supra, that a lawyer should not make public communications containing false, fraudulent, misleading, deceptive, self-laudatory or unfair statements or claims. With regard to the problem of whether attorney's names may appear on an advertisement for a free clinic, DR 2-101(B)(17) comes the closest to making a definitive statement. That section permits an attorney, in a dignified manner, to publicize the fact that he participates in a prepaid or group legal services program.

IV
CONCLUSION

While present A.B.A. Disciplinary Rules and California Bar Association Rules do not permit the use of individual attorneys' names in publicity in connection with a legal clinic, recent cases decided by the United States Supreme Court and the California Supreme Court indicate that these rules are unconstitutional. Not only does the attorney and the client have the right to publicize the availability and prices of routine legal services in a dignified and professional manner, but people have a First Amendment right to know that legal services are available.

In response to the ruling that certain proscriptions against advertising are unconstitutional, the A.B.A. has promulgated rules to substitute for those rules that have been invalidated. The proposed rules do not prohibit attorney advertising of the kind sought by the Cabrillo Pacific University--Beach Free Clinic.

This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.

APPENDIX "A"

DR 2-101 PUBLICITY

(A) A lawyer should not, on behalf of himself, his partner, associate or any other lawyer affiliated with him or his firm, use, or participate in the use of, any form of public communication containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim.

(B) In order to facilitate the process of informed selection of a lawyer by potential consumers of legal services, a lawyer may publish or broadcast, subject to DR 2-103, the following information in print media distributed or broadcasted over radio in the geographic area or areas in which the lawyer resides or maintains offices or in which a significant part of the lawyer's clientele resides, provided that the information disclosed by the lawyer in such publication or broadcast complies with DR 2-101(A), and is presented in a dignified manner:

(1) Names, including name of law firm and names of professional associates; addresses and telephone numbers;

(2) One or more fields of law in which the lawyer or law firm practices, a statement that practice is limited to one or more fields of law, or a statement that the lawyer or law firm specializes in a particular field of law practice, to the extent authorized under DR 2-105;

(3) Date and place of birth;

(4) Date and place of admission to the bar of state and federal courts;

(5) Schools attended, with dates of graduation, degrees and other scholastic distinctions;

(6) Public or quasi-public offices;

(7) Military service;

(8) Legal authorships;

(9) Legal teaching positions;

(10) Memberships, offices, and committee assignments, in bar associations;

(11) Membership and offices in legal fraternities and legal societies;

(12) Technical and professional licenses;

(13) Membership in scientific, technical and professional associations and societies;

(14) Foreign language ability;

(15) Names and addresses of bank references;

(16) With their written consent, names of clients regularly represented;

(17) Prepaid or group legal services programs in which the lawyer participates;

(18) Whether credit cards or other credit arrangements are accepted;

(19) Office and telephone answering service hours;

(20) Fee for an initial consultation;

(21) Availability upon request of a written schedule of fees and/or an estimate of the fee to be charged for specific services;

(22) Contingent fee rates subject to DR 2-106(C), provided that the statement discloses whether percentages are computed before or after deduction of costs;

(23) Range of fees for services, provided that the statement discloses that the specific fee within the range which will be charged will vary depending upon the particular matter to be handled for each client and the client is entitled to without obligation an estimate of the fee with the range likely to be charged, in print size equivalent to the largest print used in setting forth the fee information;

(24) Hourly rate, provided that the statement discloses that the total fee charged will depend upon the number of hours which must be devoted to the particular matter to be handled for each client and the client is entitled to without obligation an estimate of the fee likely to be charged, in print size at least equivalent to the largest print used in setting forth the fee information;

(25) Fixed fees for specific legal services, the description of which would not be misunderstood or be deceptive, provided that the statement discloses that the quoted fee will be available only to clients whose matters fall into the services described and that the client is entitled without obligation to a specific estimate of fees likely to be charged in print size at least equivalent to the largest print used in setting forth the fee information.

(C) Any person desiring to expand the information authorized for disclosure in DR 2-101(B), or to provide for its dissemination through other forums may apply to (the agency having jurisdiction under state law). Any such application shall be served upon (the agencies having jurisdiction under state law over the regulation of the legal profession and consumer matters) who shall be heard, together with the applicant, on the issue of whether the proposal is necessary in light of the existing provisions of the Code, accords with standards of accuracy, reliability and truthfulness, and would facilitate the process of informed selection of lawyers by potential consumers of legal services. The relief granted in response to any such application shall be promulgated as an amendment to DR 2-101(B), universally applicable to all lawyers.

(D) If the advertisement is communicated to the public over radio, it shall be prerecorded, approved by broadcast by the lawyer, and a recording of the actual transmission shall be retained by the lawyer.

(E) If a lawyer advertises a fee for a service, the lawyer must render that service for no more than the fee advertised.

(F) Unless otherwise specified in the advertisement if a lawyer publishes any fee information authorized under DR 2-101(B) in a publication that is published more frequently than one time per month, the lawyer shall be bound by any representation made therein for a period of not less than 30 days after such publication.

If a lawyer publishes any fee information authorized under DR 2-101(B) in a publication that is published once a month or less frequently, he shall be bound by any representation made therein until the publication of the succeeding issue. If a lawyer publishes any fee information authorized under DR 2-101(B) in a publication which has no fixed date for publication of a succeeding issue, the lawyer shall be bound by any representation made therein for a reasonable period of time after publication but in no event less than one year.

(G) Unless otherwise specified, if a lawyer broadcasts any fee information authorized under DR 2-101(B), the lawyer shall be bound by any representation made therein for a period of not less than 30 days after such broadcast.

(H) This rule does not prohibit limited and dignified identification of a lawyer as a lawyer as well as by name:

(1) In political advertisements when his professional status is germane to the political campaign or to a political issue;

(2) In public notices when the name and profession of a lawyer are required or authorized by law or are reasonably pertinent for a purpose other than the attraction of potential clients.

(3) In routine reports and announcements of a bona fide business, civic, professional, or political organization in which he serves as a director or office;

(4) In and on legal documents prepared by him;

(5) In and on legal textbooks, treatises, and other legal publications, and in dignified advertisements thereof.

(I) A lawyer shall not compensate or give any thing of value to representatives of the press, radio, television, or other communication medium in anticipation of or in return for professional publicity in a news item.

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.