MCLE Self Study

By Justin Fields

Fields

California's substantially revised Rules of Professional Conduct ("Rules") became effective November 1, 2018. Generally speaking, the current rules are more in line with the ABA Model Rules in terms of style, content, and numbering. In some instances, the rules have no prior counterpart; in other cases, the rules have been modified or augmented with the goal of creating more national uniformity in professional conduct rules, as well as more expansive and clear ethical guidance.

The rules pertaining to lawyer communications with the public, particularly with respect to advertising and solicitation, exemplify many of the referenced changes. As the Rules Revision Commission observed in explaining its recommended changes, lawyer communications regarding the availability for legal services are particularly appropriate for greater national uniformity given the widespread use of the Internet for marketing, evolving trends in multijurisdictional practices, and the constitutional commercial speech doctrine to which such lawyer communications are subject.

On the last point, there is a body of case law underlying the rules governing lawyer communications which analyzes the reasonable restrictions that may be applied to commercial speech, which includes lawyer advertising and solicitation. (See e.g., Bates v. State Bar of Ariz. (1977) 433 U.S. 350, 384 [reasonable restrictions on the time, place, and manner of advertising are permissible]; Shapero v. Kentucky Bar Ass'n (1988) 486 U.S. 466, 476 [recognizing that states may categorically ban in-person solicitations under certain circumstances].) The rules reflect the parameters on commercial speech set forth in applicable case law.

Former rule 1-400 ("Advertising and Solicitation") was the primary rule addressing lawyer communications with the public. The subject matter of former rule 1-400 is now found in current rules 7.1 through 7.5. The numbering is now consistent with the ABA Model Rules.

This article will highlight certain similarities and differences between the former and current rules regarding lawyer communications.

Rule 7.1 (Communications Concerning a Lawyer's Services)

Rule 7.1 sets forth the general prohibition against a lawyer making false and misleading communications about the lawyer or the lawyer's services. Rule 7.1(a). In that regard, the current rule carries forward former rule 1-400(d). A communication is false or misleading if it contains a material misrepresentation of fact or law or omits a necessary fact to make the communication considered as a whole not materially misleading.

This rule also contains an "enabling" provision similar to former rule 1-400(E), which provides that the Board of Trustees of the State Bar may formulate and adopt "Standards" regarding lawyer communications that will presumptively violate rules 7.1 through 7.5. Rule 7.1(b).

Under former rule 1-400, the Board had implemented a number of such Standards. See former rule 1-400, Standard Nos. 1-16. However, the Rules Revision Commission recommended that the former Standards not be carried forward, and they were not. Instead, many of the former Standards are now in the black letter of, or Comments to, the current rules. For example, former Standard No. 1 – that a communication containing an express guarantee or warranty of a result in a particular representation is false or misleading – is now reflected in Comment [2] to rule 7.1.

Comment [6] to this rule highlights the fact the Business and Professions Code also regulates lawyer communications concerning legal services, and should be consulted when questions about such communications arise. See Bus. & Prof. Code, §§ 6150-6159.2.

Rule 7.2 (Advertising)

Rule 7.2 addresses a subset of lawyer communications – advertising.

Lawyers may advertise, subject to rules 7.1 and 7.3, through "any written,* recorded or electronic means of communication." The asterisk in the rules connotes that a term is specially defined in rule 1.0.1 ("Terminology"). The description of the various modes of how lawyers may advertise is intended to cover both current and future means of communication, hence the somewhat generic reference to "electronic" means.

Rule 7.2 also delineates when a lawyer may pay for recommending or securing legal services, as enumerated in the five scenarios under subparagraphs (b)(1) through (b)(5). For instance, subparagraph (b)(4), which has no counterpart in the former rules, recognizes that reciprocal referral arrangements are permissible so long as the arrangement is not exclusive and the client is informed about its existence and nature. These two preconditions are intended to protect the public, while also setting parameters for this relatively common manner through which lawyers and clients are connected.

Importantly, Comment [2] highlights that neither rule 7.2 nor rule 7.3 prohibit communications authorized by law, including court-approved class action notices.

There is no longer a two-year retention requirement for advertisements as in former rule 1-400(F), but the Business and Professions Code still requires a one-year retention. See Bus. & Prof. Code, § 6159.1

Rule 7. 3 (Solicitation of Clients)

Rule 7.3 regulates communications about legal services through direct contact with specific people.

Rule 7.3 prohibits in-person, live telephone, or real-time electronic (e.g., instant messaging, live e-chat) contact where a significant motive for doing so is the lawyer's pecuniary gain. Rule 7.3(a). There are two exceptions to this prohibition; namely, where the person contacted is a lawyer or the person has a family, close personal, or prior professional relationship with the lawyer.

Reflecting case law such as the Shapero decision noted above, rule 7.3 identifies two instances where solicitation is absolutely prohibited: (1) where a person has made known that he or she does not want to be solicited; and (2) the solicitation involves intrusion, coercion, duress, or harassment. Former rule 1-400 discussed other prohibitions like contact that involved threats and intimidation, which are subsumed in the current rule's referenced circumstances.

Rule 7.3 also largely carries forward former Standard No. 5's labeling requirement: that written, recorded or electronic solicitations must generally include the word "Advertisement" or words of similar import unless an exception applies. See rule 7.3(c).

Subparagraph (e) elevates a Comment in the Model Rule to the black letter of rule 7.3. Subparagraph (e) reinforces that the solicitation rule applies to "targeted" communications initiated by or on behalf of a lawyer that are directed to a specific person with respect to legal services.

The Comments to the rule help clarify its scope. For one, a lawyer's communication directed to the general public (e.g., through a billboard, Internet banner advertisement, website or television commercial) is not a solicitation, nor is a response to a request for information. See Comment [1]. Nor does the rule apply to situations in which the lawyer is motivated by considerations other than pecuniary gain, such as communications for bona fide public or charitable legal service organization work. See Comment [2].

Rule 7.4 (Communication of Fields of Practice and Specialization)

A lawyer may not state that he or she is a certified specialist in a particular field unless the lawyer is currently certified as a specialist by the Board of Legal Specialization or other recognized accrediting entity, and clearly identifies the name of the certifying organization in the communication. Rule 7.4(a). This is consistent with former rule 1-400(D)(6).

By adopting part of the Model Rule, rule 7.4 also confirms that a lawyer may communicate that he or she does or does not practice in particular fields of law. Rule 7.4(b). Going beyond the Model Rule, current rule 7.4 further states that even where a lawyer is not a certified specialist, a lawyer may communicate that his or her practice specializes in, is limited to, or is concentrated in a particular field of law, so long as such a communication complies with rule 7.1 (i.e., is not false or misleading).

Rule 7.5 (Firm Names and Trade Names)

Use of a firm name, trade name or other professional designation is considered a lawyer communication and therefore subject to the false and misleading prohibition under Rule 7.1.

Rule 7.5 essentially carries forward former Standard Nos. 6 through 9 in that the rule provides that a lawyer may not state or imply a relationship with a governmental agency or with a public or charitable legal services organization. Nor may a lawyer state or imply that the lawyer practices with a law firm or other organization unless that is actually the case.

The term "other professional designation" is intentionally broad and "includes, but is not limited to, logos, letterheads, URLs, and signature blocks." Unlike the former rule and Model Rule, rule 7.5 does not separately discuss letterhead, as it is thought that with the prevalence of electronic communication a broader discussion of professional designations was more appropriate.

Conclusion

The current rules on lawyer communications with the public largely continue the spirit and content of former rule 1-400 but are written and structured in a more reader-friendly manner to help lawyers understand their ethical obligations with respect to communications about themselves and the services they provide.