Christine C. Rosskopf
Senior Counsel
Rosing Pott & Strohbehn
501 W Broadway A380
San Diego , CA 92101
Email: crosskopf@rosinglaw.com
Whether it's a fire, landslide, flood or other disaster, there
are times when large groups of people could use your legal services. How do you
safely reach out to potential clients communicating your availability to assist
without running afoul of the rules on advertising and solicitation? Providing
others with information about legal services is covered in chapter seven of the
Rules of Professional Conduct and in the California Business & Professions
Code at sections 6150 through 6159.2 and 17000.
Let's get a few terms clear. Advertising is the public
dissemination of accurate information concerning a lawyer and his or her
services. Lawyers may use written, recorded, or electronic methods to
communicate, including electronic media. When considering advertising, think of
television, radio, print advertisements or billboards. Advertising is passive
and is sent out or made available to the public generally. Contrast
solicitation, which is a targeted communication by a lawyer or someone acting
on his or her behalf, directed toward a specific individual offering to provide
legal services. Solicitation can involve in-person, direct communication, or
written or recorded materials.
Also, not covered here is the use of referral or lead generation
services. The rules and guidelines related to these third-party services are
nuanced and deserve an article of their own.
Advertising is covered by rule 7.2 and, in general, it is
permitted as long as your communication, in whatever
manner it is delivered, is not misleading. Be mindful that even truthful
statements can be considered misleading. For example, if you use a testimonial
from a client for whom you obtained a terrific outcome, the testimonial is
misleading if it causes potential clients to believe that they will obtain a
similar outcome. Testimonials should include a disclaimer such as, "Outcomes
are examples only, I cannot guaranty the same or similar results in your case."
Likewise, if you offer services on a contingency fee basis, advertising "no fee
without recovery" or "you don't pay unless we win" is misleading unless you
clarify whether or not the client will be responsible
for the costs associated with a lawsuit apart from legal fees. Advertising in a
language other than English is misleading unless you are able
to provide services in that language.
Although you can indicate specialty areas of practice, rule 7.4
prohibits a lawyer from stating or implying that he or she is a "certified"
specialist unless the lawyer is currently certified, and the advertisement
clearly identifies the certifying agency. For example, an advertisement can say
that you specialize in family law if that is a main practice or area of
concentration, but you cannot indicate that you are a "certified family law
specialist" unless you have the certification and identify the entity that
certified you.
A word of caution about trade or firm names. While lawyers may
use trade names, rule 7.5 makes clear that a trade name cannot mislead the
public into thinking that the lawyer is affiliated with a government agency or
charitable organization or imply that an individual is a member of a firm or
that another lawyer is associated with the firm unless that is true.
Finally, pursuant to rule 7.2(c), the content of your
advertisement must also include the name and address of at least one lawyer or
the law firm that is responsible for the content of the advertisement. While
the rule specifically refers to "address" it does not indicate that the address
must be a physical or post office mailing address. An email address, website,
or other electronic address is enough to satisfy the requirement.
Solicitation for clients is addressed in rule 7.3. Of course,
prohibitions on false or misleading statements apply equally here. To what
extent you can solicit potential clients for legal services depends, in part,
on how you go about it. The rules draw a distinction between in-person and
written or recorded solicitations for clients.
You cannot engage in direct, real-time communications to offer
paid legal services like telephone calls, live chats, or messaging to potential
clients unless you are contacting another lawyer, contacting a family member,
close personal friends, or former clients. Note the emphasis on paid legal
services. The rules do permit lawyers to engage in "constitutionally protected
activities of bona fide public or charitable legal-service organizations, or
bona fide political, social, civic, fraternal, employee, or trade organizations
whose purposes include providing legal services to their members or
beneficiaries." (In re Primus (1978) 436 U.S. 412).
Unlike direct, real-time communications, lawyers may send
written or recorded solicitations to persons known or believed to be in need of legal services as long as the material
includes the word "Advertisement" or similar on the communication itself, the
outside of any envelope, if any, and if recorded, at the beginning and end of
the message.
Even where solicitation is permitted under the rules, lawyers
cannot solicit if the person being solicited has asked not to be solicited, or
the solicitation is transmitted in a way that is considered "intrusion,
coercion, duress, or harassment." While these terms are not defined in the
rules, threats, scare tactics, high pressure sales pitches and intimidation
would fall into these categories.
A few practical tips: Have someone review the material carefully
before you send it out. Also, keep your work. Business & Professions Code
section 6159.1 requires that lawyers retain copies of advertisements soliciting
employment of legal services for one year. If there is any question about the
propriety of a communication, you can show your work.
Except in the most egregious of cases, if you have engaged in
advertising or solicitation for clients and generate a complaint, the State Bar
will generally review the material and send a cease-and-desist letter and
provide resources to help ensure compliance with the rules. If the problem
persists, then the State Bar may take disciplinary action.
So, the next time you want to reach out to potential clients and
communicate your availability to provide legal services, review the rules,
proceed with care, and carry on.
The Rosing Pott & Strohbehn Ethics and Risk Management
Team writes a monthly legal ethics column with practical insights to assist
California Practitioners understand cutting edge ethics issues, manage risk,
and ensure compliance. More about the Team and the authors - Heather
Rosing, Dave Majchrzak, Christine Rosskopf, and Joanna
Storey - can be found at https://rosinglaw.com/people/.