Ethics Opinon 1992-3

I
QUESTION PRESENTED

May an attorney use a personalized direct mailing to communicate with a prospective client who has been arrested, where the attorney obtained the prospective client's name, address and arrest information through public records documenting that arrest?

II
SUMMARY

A personalized directed mailing does not constitute a prohibited solicitation under Rule of Professional Conduct 1-400(B) or (C). In fact, just such a targeted mailing was afforded constitutional protections by the United States Supreme Court in Shapero v. Kentucky Bar Association, 108 S. Ct. 1916 (1988). As a communication, however, the mailing is subject to a number of restrictions outlined under Rule 1-400(D) and related standards promulgated by the Board of Governors, which require that the mailing identify itself as an advertisement and not contain false or misleading matter. Although the social propriety of obtaining potential client information from arrest records might be debated by members, legally accessing information that is public record (1) does not implicate the present Rules of Professional Conduct.

III
STATEMENT OF FACTS

Various companies have contracted with local law enforcement agencies to obtain arrest information in order to market that data to defense lawyers. Among others, attorneys specializing in DUI defense work have purchased that information in order to direct personalized mailing ("jail mail") to the arrestees, soliciting their representation. A number of these letters have been forwarded to this Committee. The letters are written on firm stationery and sometimes include a business card. The letters often stress the severe nature of the penalties associated with DUI violations, urging the arrestee not to delay contacting the attorney. Others have even gone so far as to implicitly guarantee the "best possible results." Most letters, but not all, display a designation of "advertisement."

Applicable Rules: California Rule of Professional Conduct 1-400, Rules of Professional Conduct of the State Bar of California (Effective September 14, 1992):

Rule 1-400. Advertising and Solicitation (in pertinent part):
. . .

(D) A communication or a solicitation (as defined herein) shall not:

(1) Contain any untrue statement; or

(2) Contain any matter, or present or arrange any matter in a manner or format which is false, deceptive, or which tends to confuse, deceive, or mislead the public; or

(3) Omit 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; or

(4) Fail to indicate clearly, expressly, or by context, that it is a communication or solicitation, as the case may be; or

(5) Be transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct; or

(E) The Board of Governors of the State Bar shall formulate and adopt standards as to communications which will be presumed to violate this rule 1-400. The standards shall only be used as presumptions affecting the burden of proof in disciplinary proceedings involving alleged violations of these rules. "Presumption affecting the burden of proof" means that presumption defined in Evidence Code sections 605 and 606. Such standards formulated and adopted by the Board, as from time to time amended, shall be effective and binding on all members.

. . .

Standards:

Pursuant to rule 1-400(E) the Board of Governors of the State Bar has adopted the following standards, effective May 27, 1989 as forms of "communication" defined in rule 1-400(A) which are presumed to be in violation of rule 1-400:

(1) A "communication" which contains guarantees, warranties, or predictions regarding the result of the representation.

(2) A "communication" which contains testimonials about or endorsements of a member unless such communication also contains an express disclaimer such as "this testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter."

(3) A "communication" which is delivered to a potential client whom the member knows or should reasonably know is in such a physical, emotional, or mental state that he or she would not be expected to exercise reasonable judgment as to the retention of counsel.

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

(5) A "communication" except professional announcements, seeking professional employment primarily for pecuniary gain which is transmitted by mail or equivalent means which does not indicate clearly, expressly or by context that it is a form of advertising. If such communication, including firm brochures, newsletters, recent legal developments advisories, and similar materials, is transmitted in an envelope, the envelope shall bear the word "Advertisement," "Newsletter" or a similar identification on the outside thereof.

. . .

(11) A "communication" which states or implies that a member is a "certified specialist" unless such communication also states the complete name of the entity which granted the certification as a specialist.

Analysis:

The Mailings Are Communications But Not Solicitations

The letters forwarded to this Committee are clearly communications under Rule 1-400(A)(1)(2) and (4). The letters (1) make use of the firm or attorney name; (2) are on stationery or letterhead which identifies the member, law firm, or lawyers; and (4) constitute unsolicited correspondence from a member or law firm directed to a person.

However, under Rule 1-400(B), which defines "solicitation," these letters do not qualify as solicitations which are prohibited by Rule 1-400(C). This is because, although the letters are almost certainly motivated by pecuniary gain, the information communicated by the attorney is not delivered in person or by telephone. Unless the letters are hand delivered, accompanied by an unsolicited telephone call, or directed to a prospective client whom the sender knows to be represented by counsel, these letters do not constitute solicitations. (See Rule 1-400(B).) (2)

Moreover, the commercial speech interest represented by this type of targeted mailing was afforded constitutional protections on First and Fourteenth Amendment grounds by the United States Supreme Court in Shapero v. Kentucky Bar Association, 108 S. Ct. 1916 (1988). In Shapero, a Kentucky attorney applied to the State Attorneys Advertising Commission for approval of a letter to be sent to "potential clients who have had a foreclosure suit filed against them." (108 S. Ct. at 1919.) Approval was denied by the Commission on the grounds that the letter constituted an impermissible solicitation under the Rules of Professional Responsibility, and the denial was subsequently upheld by the Kentucky Supreme Court. The United States Supreme Court reversed, holding that a state may not categorically prohibit lawyers from soliciting business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems. Id. at 1925 (3) The Court deemed such advertising to be constitutionally protected commercial speech. Id. at 1921.

These Communications Are Nonetheless Subject to Restrictions

As communications, of course, the targeted mailings remain subject to a number of restrictions set forth in Rule 1-400 (D)(1)-(5) and the related Standards promulgated by the Board of Governors of the State Bar. Under the subparts of Rule 1-400 (D), the letters must be truthful and not tend to mislead the recipient in their presentation or by omission. Neither can the letters be designed to create fear or intimidate the recipient. For example, the letters to DUI arrestees which make representations about potential fines and other penalties must be accurate, and not be designed to frighten the recipient into contacting the attorney out of undue fear.

The standards promulgated by the State Bar Board of Governors set forth additional safeguards circumscribing communications such as these. The most relevant of these are that attorneys are not to communicate "guarantees, warranties, or predictions" regarding the result of representation. (4) Similarly, testimonials or endorsements in favor of the attorney included in the communication must be accompanied by disclaimers.(5) All such communications seeking professional employment through the mail must identify themselves as advertisements. (6) The envelope must include the advertisement designation as well. (7)

Bright Lines Are Difficult to Draw

The requirement that this material be identified as an "advertisement," etc., is a predominantly objective determination. However, the prohibitions of "guarantees" and adequacies of disclaimers involve more subjective findings, as do determinations of threats or intimidation. As the California State Bar Committee on Professional Responsibility and Conduct stated in Formal Opinion 1988-105, such findings must be made on a "case by case" basis in light of all the facts. (8)

In addition, the State Bar Committee recommended that in the interest of full disclosure, such written communications should inform the potential client of how the lawyer obtained the potential client's name. None of the subject letters to DUI arrestees forwarded to this Committee made a disclosure as to how their arrest information was obtained by the attorney. Such a disclosure, although not required, would make these communications more consistent with the spirit of Rule 1-400 and its related guidelines.

Use Of The Arrest Record Information A Non-Issue Under Rules

While the practice of purchasing or otherwise accessing public arrest records by defense attorneys in order to direct mailings to potential clients may be distasteful and appalling to many attorneys, it is compellingly defended by others as a means increasing competition and benefitting clients by lowering the cost of representation. However, as long as such information is indeed in the public record and legally obtained, such practices do not implicate the Rules of Professional Conduct. It is worth noting that the targeted mailing in Shapero v. Kentucky Bar Association, 108 S. Ct. 1916, 1919 (1988), involved letters to potential clients who had foreclosure suits filed against them; whose names and addresses were almost certainly obtained from public records.

This opinion is advisory only, and is not binding on the San Diego County Bar Association, its officers, agents or the State Bar of California or any court.

1. This opinion assumes the arrest information made available by law enforcement agencies is "public record."
   
   
2. These issues were legally addressed by Formal Opinion No. 1988-105 of California State Bar Committee on Professional Responsibility and Conduct, which dealt with whether lawyers may ethically solicit employment by means of targeted letters to personal injury victims. At that time, the State Bar Committee analyzed this question under Rule 2-101 of the former Rules of Professional Responsibility. Citing both that Rule and the opinion of the United States Supreme Court in Shapero v. Kentucky Bar Association, 108 S. Ct. 1916 (1988), the State Bar Committee deemed that a lawyer may ethically so advertise.
   
   
3. States may, however, enact less restrictive measure to prevent deception and abuse, such as requiring that a personalized letter bear a label identifying it as an advertisement or a statement informing the recipient how to report an inaccurate or misleading letter. See Peel v. Attorney Registration and Disciplinary Commission of Ill., S. Ct. 2281, 2296 (1990).
   
   
4. See Standard (1).
   
   
5. See Standard (2).
   
   
6. See Standard (5).
   
   
7. See id.
   
   
8. See CAL 1988-105 n.1 (Difficulty results from attempting to define in a vacuum what the content of a particular written solicitation must be so that it is truthful, nondeceptive, and makes full disclosure).
   

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.