Unlawful Attorney Advertising

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Ads cannot include false statements, confusing or misleading information, or predict the outcome of a case 

By Luis E. Ventura and
Wendy Patrick Mazzarella

Ventura

Mazzarella

San Diego litigator Alexander Hamilton wanted to boost his business with print advertising, including a mass mailing. He took the following draft ad copy to noted San Diego legal ethics expert John Marshall to make sure the ad complied with the applicable Rules of Professional Conduct and statutes.

The ad copy read: “Dear Friend: Alexander Hamilton, Esq., A Recognized Expert in Representing Those Injured By Big Companies, Wants To Handle Your Lawsuit! Join Hamilton’s past clients in getting everything you deserve. You pay nothing unless we succeed together. One satisfied client writes: ‘Thanks to you, my family was compensated for our injury and our money worries are over.’” The bottom of the ad read: “Se Habla Espanol.”

Marshall took one look at his friend’s ad copy and said, “I’m glad you came to see me. You can’t use this to advertise your services.”

“Why not? In 1977, in Bates v. State Bar of Arizona (1977) 433 U.S. 350, the United States Supreme Court said an attorney may engage in truthful advertising. There isn’t anything false in this ad,” said Hamilton defensively.

“It’s true that an attorney may advertise,” said Marshall, “but California Rule of Professional Conduct 1-400 regulates how we may advertise. Your ad raises a number of concerns. Before I get started with what’s wrong with your ad, I want to commend you at least for not making this kind of a pitch to a prospective client in person.”

“Why does it make a difference whether I promote my services in person?” asked Hamilton.

“Because, the Supreme Court held in Shapero v. Kentucky Bar Association (1988) 486 U.S. 466, that because lawyers are trained to be persuasive, targeted direct-mail solicitation ‘poses much less risk of overreaching or undue influence,’ than solicitation done in person,” said Marshall. (Id. at 475 [citing Zauderer, 471 U.S. at 642].)

Hamilton shrugged, “Now that you’ve told me what I did right, tell me why my ad violates the ethical rules.”

Communications and solicitations

“First,” said Marshall, “your proposed ad satisfies neither the rules that apply to ‘communications’ nor those that apply to ‘solicitations’ under Rule 1-400. A ‘communication’ for purposes of the rule refers to “any message or offer made by or on behalf of a member,” regarding employment, that is directed to a prior, current or potential client. Communications include the use of the attorney’s name or firm name, letterhead or business cards, advertisements directed to the general public and unsolicited correspondence. (Rule 1-400(A).)

“A solicitation is defined as any communication regarding legal employment where ‘a significant motive is pecuniary gain,’ which is either delivered in person or by telephone, or directed to someone known by the sender to be represented by counsel in the matter. (Rule 1-400(B).) Rule 1-400(C) prohibits solicitations of prospective clients with whom an attorney has no prior professional or family relationship unless the solicitation is constitutionally protected.”

“Granted that the ad is probably both a ‘communication’ and, potentially, a ‘solicitation,’ but you still haven’t told me why I can’t use it,” said Hamilton impatiently. 

“Because, my friend,” replied Marshall, “Rule 1-400(D) prohibits the use of false statements as well as deceptive, confusing or misleading information, or the omission of information necessary to place the message in context. (Rule 1-400(D)(1)-(3).) Your ad violates that rule by suggesting any prospective client will get some recovery. We both know you can’t guarantee that.  You also suggest that the ad is a letter to a ‘dear friend,’ in violation of Rule 1-400(D)(4), which requires all ads to be clearly identified as such. 

“Finally, subsection (6) of Rule 1-400 prohibits attorneys from referring to themselves as ‘certified specialists’ unless they actually have the current requisite certificate and list the agency or entity that granted the certification. Reference to yourself as a ‘recognized expert’ violates this rule because there is no officially sanctioned specialty for handling personal injury matters.”

“OK,” said Hamilton. “I can edit those things out. Thanks for your help.”

“I’m just getting started,” said Marshall. “Rule 1-400 identifies 16 presumptive violations of the Rule. These include communications which guarantee or predict the outcome of the representation, those which contain a testimonial about or endorsement of an attorney without an express disclaimer explaining that the lawyer does not guarantee or predict the outcome of the potential client’s case, and those targeting potential clients that the attorney knows or should know cannot exercise reasonable judgment about retaining counsel due to their current physical, emotional or mental condition. (Rule 1-400(E)(1)-(3).) Your ad copy violates at least the first two of those three. 

“In addition,” Marshall continued, “Standard 14 creates a presumption that advertisements which state or imply ‘no fee without recovery’ violate the rule unless they ‘also expressly disclose whether or not the client will be liable for costs.’ Business and Professions Code §6157.2(d) says essentially the same thing but makes it clear that no such disclosure is required if the client will not be held responsible for costs.

“The very bottom of your ad about speaking Spanish is also presumptively unethical because you don’t speak Spanish,” added Marshall.

“So what?” said Hamilton. “My office administrator does and she helps me with clients who speak Spanish.”

“That doesn’t matter,” said Marshall. “Standard 15 prohibits a communication from stating or implying that an attorney can render services in a foreign language unless the member can actually do so, or unless the communication also states the employment title of the person who speaks the language, and that the person is not a member of the State Bar of California, if that is the case. Your ad doesn’t do that.”

“Maybe I should just forget about print advertising,” said an exasperated Hamilton. “I have enough business from people on my staff who pass out my card at jails, hospitals and on the street.”

Runners and cappers

Marshall could not believe what he just heard. “That plainly violates California Business and Professions Code §6152, which bars the use of ‘runners’ and ‘cappers,’ defined in §6151 as ‘any person, firm, association or corporation’ operating for consideration as an agent for a lawyer or law firm, in soliciting business.’

“Such persons are barred from soliciting business for attorneys in hospitals, jails, prisons, courts and public streets. If your people are doing what you described, you have to stop them. Attorneys may be charged with aiding and abetting runners and cappers.” (Hutchins v. Municipal Court (1976) 61 Cal.App.3d 77.)   

“What are you talking about?” said Hamilton. “Referrals are perfectly legal. And, anyway, where does that rule leave public defenders?”

“Alex, you are right that §6152(c) does not prohibit recommending an attorney to another person, as long as it doesn’t violate any other California Rule of Professional Conduct,” said Marshall. “But the way you have your agents operate does violate the rules,” he added. “Subsection (d) explains that this rule does not apply to public defenders or appointed attorneys, who must make their services known to indigent defendants. But that exception is not applicable to attorneys operating in other arenas.” 

Hamilton, by now weary, groaned, “I guess I’ll have to revise my print ads and drop the runners and cappers. Is there any way I can put a properly prepared print ad on my Web site — maybe even with a few audio and visual bells and whistles?”

“That you can do,” said Marshall. “But be careful. California State Bar Formal Opinion 2001-155 concludes that attorney Web site information relating to employment availability qualifies as a communication under Rule 1-400(A), but not as a solicitation under Rule 1-400(B).

“This is the case even if the Web site offers an electronic mail option facilitating direct correspondence with the attorney. As a communication, however, the Web site information still must comply with the rules governing permissible content of communications. The applicable regulations govern not only the words on the Web site, but also the sounds and images.”

“I’m not complaining, but why does the California State Bar formal opinion not consider my Web site a solicitation, but merely a communication? Isn’t the Internet transmitted over telephone lines?” asked Hamilton.

Marshall explained: “Formal Opinion 2001-155 notes that the ‘delivered in person or by telephone’ requirement is very specific and intended as an easy-to-understand ‘bright line’ test. The opinion further explains that ‘[a]lthough e-mail communication as part of Web site technology permits faster responses and more interaction than is possible with other forms [of] written communication, it does not create the risk that the attorney might be able to use her persuasive ability and experience to influence unduly the potential client’s thoughtful decision to hire her.’

“Regarding the fact that a computer e-mail uses a ‘telephone’ line, the opinion recognized that ‘its resemblance to a telephone discussion ends with the mechanism of transmission.’ The opinion compared e-mail to regular mail in the sense that potential clients are afforded the time to analyze and reflect upon the content of the communication before they respond.”

“I feel enlightened and discouraged at the same time,” said Hamilton.

“Don’t be discouraged,” said Marshall reassuringly. “Advertising remains an important tool in marketing your services as an attorney to the public. Law is a competitive business. By abiding by the applicable ethical and legal rules — and checking with people who know the ethical rules that apply when you have questions — you will be able to have a thriving practice, as well as a spotless disciplinary record.”

• Wendy Patrick Mazzarella is a deputy district attorney in San Diego and Luis E. Ventura is an associate with Epsten, Grinnell & Howell in San Diego. They are members of the San Diego County Bar Association’s Legal Ethics Committee; Mazzarella is an incoming chair of the committee. The views expressed are their own. Please shepardize all case law before using.

Certification

• This self-study activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of one hour of legal ethics.

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Self-Assessment Test

Indicate whether the following statements are true or false after reading the MCLE article on unlawful attorney advertising. Use the answer form provided to send the test, along with a $25 processing fee, to the State Bar. If you do not receive your certificate within four to six weeks, call 415-538-2504.

1. Although attorneys are not allowed to guarantee the outcome of a matter in advertisements, because the nature of legal services is to render advice, attorneys are permitted to predict the outcome.
2. Although arguably similar to telephonic communications, a Web site that allows for direct communication to and from the attorney is not considered a “solicitation” under RPC 1-400(B), and is therefore not prohibited by RPC 1-400(C).
3. Because an attorney could not be convicted of being a runner/capper for himself/herself, the attorney cannot be convicted of conspiracy or aiding and abetting with a runner/ capper.
4. So long as someone in the office speaks the foreign language in question, an advertisement can simply state that legal services are rendered in the foreign language.  
5. So long as allowed by the Rules of Professional Conduct, the Bus. & Prof. Code does not prohibit recommending the legal services of another attorney.
6. California has yet to regulate the sounds and images that might be used in Web-based advertisements.
7. RPC 1-400 is the sole authority regulating the content of attorney advertisements in California.
8. The use of a runner/capper is punishable as a legal offense only if it also violates the Rules of Professional Conduct.
9. Targeted direct mail advertisement is not protected by the federal Constitution’s free speech clause.
10. Labeling an advertisement “legal notice,” without further clarification, is impermissible.
11. So long as the person does not receive any form of compensation, s/he is neither a runner nor a capper.
12. Not until the federal Supreme Court’s decision in Shapero v. Kentucky Bar Association (1988) 486 U.S. 466, did the court recognize a federal Constitutional right to engage in truthful attorney advertisement.
13. The prohibition against runners and cappers is also meant to prohibit public defenders and court-appointed counsel from making their criminal defense services known to persons unable to afford legal counsel.
14. An attorney’s letterhead is a communication within the meaning of RPC 1-400.
15. So long as a random telephonic solicitation is truthful, made during normal business hours, and unoppressive, it is permissible.
16. The use of a runner or capper is prohibited only where the solicitations will be made on government property such as jails, hospitals and courthouses. Solicitations on private property are permitted.  
17. An in-person solicitation for the rendition of pro bono legal services is permissible under California’s Rules of Professional Conduct.
18. A Web page that communicates the result in a particular case must, at the very least, state that the result portrayed in the advertisement was dependent on the facts of the particular case, and that the results will differ if based on different facts.
19. It is never permissible to include the phrase “no fee without recovery” unless the advertisement also clarifies whether the client is responsible for costs. 
20. It is impermissible to use testimonials in advertisements.