Ethics Opinon 1983-5

I
QUESTION PRESENTED

May an attorney ethically mail letters to non-clients, advertising the attorney's services? When is the advertising by mail of an attorney's services permitted under Rule 2-101?

II
SUMMARY

An attorney may ethically advertise services by direct mail to prospective clients provided that the mailing conforms to the requirements of Rule 2-101 of the Rules of Professional Conduct. Such advertisements must be mailed at random, or in a manner not calculated to reach classes of persons with a specific legal problem. An attorney may not advertise legal services by mailing information to persons whose names have been selected from publicly recorded Notices of Default, bankruptcy lists, or any public records listing specific persons with specific legal problems or potential problems.

III
DISCUSSION

The Committee has received a number of inquiries relating to solicitation by mail practices engaged in by members of the State Bar of California practicing in San Diego County, particularly with regard to the advertising of bankruptcies and other services to debtors. The purpose of this opinion is to give general guidance with respect to advertising and solicitation of legal business by mail, as well as more specific guidance with regard to the advertising of legal services to debtors.

Rule 2-101 of the Rules of Professional Conduct provides that "a member of the State Bar may seek professional employment from a former, present or potential client by any means consistent with these rules" [emphasis added]. Rule 2-101, however, specifically prohibits certain types of communications as enumerated in subdivisions 2-101(A) and (B). Subdivision 2-101(A) generally restricts the content of communications by attorneys so as to ensure that the information communicated is truthful and not misleading. Subdivision 2-101(B) restricts the means by which communications may be transmitted, and sets standards regarding persons to whom communications may be directed. In addition, subdivision 2-101(C) prohibits the use of runners, agents and cappers, or the performance of any acts by such persons which, if performed by a member of the State Bar, would violate subdivisions (A) and (B).

Subdivision 2-101(D) further provides that the Board of Governors for the State Bar shall formulate and adopt standards as to what communications will be presumed to violate subdivisions 2-101(A) and (B). In response to the mandate of subdivision 2-101(D), the Board of Governors has adopted the following statement:

"A 'communication' is presumed to violate Rule 2-101, Rules of Professional conduct, if it:

"(1) Contains guarantees, warranties or predictions regarding the result of legal action; or

"(2) Contains testimonials about or endorsements of a member; or

"(3) Is delivered in person or by telephone to a potential client who is in such physical, emotional or mental state that he or she would not be expected to exercise reasonable judgment as to the retention of counsel; or

"(4) Is transmitted at the scene of an accident or en route to a hospital, emergency care center or other health care facility."

With regard to the question of unsolicited letters sent to potential clients, the State Bar's Standing Committee on Professional Responsibility has previously interpreted Rule 2-101 to hold that it is not improper for an attorney to send an unsolicited letter to a potential "business" client describing the legal services offered by the sender without reference to the potential client or any specific case or matter involving that potential client. [See Formal Opinion No. 1980-54.]

Although Formal Opinion No. 1980-54 is limited in its holding to potential "business" clients, there appears to be no substantial justification for distinguishing between potential "business" and "non-business" clients in the application of Rule 2-101. Although such a distinction was not specifically considered, the most recent United States Supreme Court decision relating to attorney advertising, In re R.M.J. (1982) ___ U.S. ___, 102 S.Ct. 929, upholds the fundamental right of an attorney to mail advertising to the general public, but recognizes the power of the appropriate regulatory authority (i.e., the State Bar) to regulate such communications. In that decision, the Court, in considering an interpretation of Missouri Bar rules restricting the content of attorney advertising and prohibiting the mailing of announcement cards to the general public, reversed a decision of the Supreme Court of Missouri imposing discipline for a violation of those rules, and stated as follows:

"[A]lthough the states may regulate commercial speech, the First and Fourteenth Amendments require that they do so with care and in a manner no more extensive than reasonably necessary to further substantial interests. The absolute prohibition on appellant's speech, in the absence of a finding that his speech was misleading, does not meet these requirements."

Unlike Missouri, California has not adopted an absolute prohibition on the mailing of communications to non-clients, but has adopted the guidelines set forth in Rule 2-101 of the Rules of Professional Conduct. Additional specific guidance concerning the State Bar's interpretation of Rule 2-101 may be found in its recently published Formal Opinion 1982-67, which considers, among other matters, the Supreme Court's decision in In re R.M.J. Although the issue of solicitation to "business" and "non-business" clients is not specifically addressed in opinion 1982-67, we believe that the State Bar has, in Formal Opinion 1982-67, now taken a position consistent with the holding of the United States Supreme Court in In re R.M.J., that the mailing of advertising to the general public, provided that it otherwise conforms to the standards of Rule 2-101, is not inherently misleading. Accordingly, we believe that, notwithstanding the suggestion of Opinion No. 1980-54 that such mailings may be made only to potential "business" clients, advertising by mail to the general public is permissible and that the facts surrounding each unsolicited letter must be weighed according to the standards set forth in Rule 2-101 and by the Board of Governors of the State Bar.

In our opinion, an unsolicited letter to a potential client is presumptively prohibited under subdivision 2-101(B) if it: (1) is specifically directed to a particular potential client; (2) regards that potential client's particular case or matter; and (3) seeks professional employment for pecuniary gain. The question of whether a letter falls within the presumptive prohibitions of Rule 2-101(B) must be determined by examining the total facts and circumstances surrounding the letter. For example, it is frequently impossible to determine, by simply examining a copy of a letter, whether that letter is specifically directed to a particular client or a particular case or matter. In our opinion, a letter which complies with Rule 2-101(A), and offers legal services to debtors but which is sent generally to a broad category of persons (i.e., property owners) without regard to whether such persons are in default on obligations secured by their property would appear not to be directed to a "particular matter," and thus would not presumptively violate Rule 2-101. However, that same letter, if selectively mailed (i.e., sent only to persons known to be in default or against whom Notices of Default have been recorded), it would appear to be directed to a "particular matter," and therefore would presumptively violate Rule 2-101. Attorneys who are faced with such questions should review Rule 2-101 as well as Formal Opinion 1982-67 for guidance before undertaking to mail such communications. Additional guidance on this issue may also be found in Formal Opinion No. 404 of the Los Angeles County Bar Association, published on January 19, 1983.

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.