State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
May an attorney send letters to nonclients detailing fees and costs for "routine" legal services and specifying qualifications of firm members?
Mail advertising of fees and costs for legal services, or the qualifications of an attorney, is not proscribed by the California Rules of Professional Conduct, provided that such communications otherwise comply with rules 2-101 and 2-107.
Rules 2-101 and 2-107 of the Rules of Professional Conduct of the State Bar.
We have been asked:
1. May an attorney ethically mail letters to non-clients?
2. If this is ethically permissible, may the content of the letters include:
(a) details of charges for routine legal services; and
(b) the specifications of the qualifications of firm members?
In opinion No. 1980-54, this Committee addressed the first question and concluded:
Under rule 2-101 of the Rules of Professional Conduct, it is not improper for an attorney or law firm to send unsolicited letters to potential business clients describing the legal services offered by the lawyer or law firm, provided that it is not specifically directed to a particular person regarding that person's particular case or matter.
(See also Bar Assn. of San Francisco Legal Ethics Comm., opn. No. 1979-1.)
For the purposes of this opinion, we are assuming that the proposed letter is not a prohibited solicitation under rule 2-101(B) of the Rules of Professional Conduct. If it is not a prohibited solicitation, the content of the letter solicitation should next be analyzed as a "communication" within the meaning of rule 2-101(A) of the Rules of Professional Conduct. (Report and Recommendations of the Special Committee on Lawyer Advertising and Solicitation (November 1978) pp. 18-19.)
In opinion No. 1980-54, we specifically declined to opine on the permissible content of such letters. We now address the content issue and determine whether details of charges for routine legal services and the specification of the qualifications of firm members may ethically be included in letter solicitations not prohibited by rule 2-101(B) of the Rules of Professional Conduct.
A member of the State Bar may seek professional employment by any means consistent with the Rules of Professional Conduct, particularly rule 2-101.
Rule 2-101(A) sets forth the content of attorney communications, including letter advertisements, which is prohibited, as follows:
"Accordingly, a member of the State Bar may seek professional employment from a former, present or potential client by any means consistent with these rules.
"(A) A 'communication' is a message concerning the availability for professional employment of a member or a member's firm. A 'communication' made by or on behalf of a member 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 the 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
"(5) State that a member is a certified specialist unless the member holds a current certificate as a specialist issued by the California Board of Legal Specialization pursuant to a plan for specialization approved by the Supreme Court; or
"(6) Be transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats or vexatious or harassing conduct."
Rule 2-101 was adopted in California in response to decisions of the United States Supreme Court seeking to balance the interests of states in regulating advertisements of business by attorneys with the interest of attorneys in making known their availability to perform legal services, and the interest of the public in receiving information concerning the availability of legal services. The introductory comment to the rule provides:
"This rule is adopted to foster and encourage the free flow of truthful and responsible information to assist the public in recognizing legal problems and in making informed choices of legal counsel."
Accordingly, we look for guidance to these Supreme Court decisions in interpreting the intent of rule 2-101(A) of the Rules of Professional Conduct respecting content of proposed letters. Bates v. State Bar of Arizona (1977) 433 U.S. 350 [97 S.Ct. 2691] was the first Supreme Court case dealing with advertising and solicitation by attorneys. Bates discussed the issue of whether an attorney may permissibly advertise the specific cost "routine" legal services, the issue now before this Committee. Although the Bates case involved a newspaper advertisement, we believe that the principles regarding costs for routine legal services are equally applicable to a letter of solicitation.
The legal clinic in Bates placed an advertisement in a newspaper of general circulation quoting a specific cost for:
1. An uncontested divorce or legal separation;
2. Preparation of court papers and instructions for handling one's own uncontested divorce;
3. Uncontested adoptions;
4. Uncontested nonbusiness bankruptcies;
5. Change of name proceedings.
Although the Court in Bates did not define "routine" legal services as such, it is clear that those detailed were approved. However, it should be noted that the dissenting opinion stated above that the myriad of problems involved in any divorce proceeding preclude its classification as "routine." It was also contended in the dissent that price advertising is misleading, as the exact services to be included in an advertised package may not be clearly understood.
The United States Supreme Court, citing First Amendment protection, held that a state may not restrain the free flow of truthful information. It affirmed that the state shall retain the power to define the services which must be included in any advertised package, and commented (Id., p. 373, fn. 28):
"We recognize that an occasional client might fail to appreciate the complexity of his legal problem and will visit an attorney in the mistaken belief that his difficulty can be handled at the advertised price. The misunderstanding, however, usually will be exposed at the initial consultation, and an ethical attorney would impose, at the most, a minimal consultation charge or no charge at all for the discussion. If the client decides to have work performed, a fee could be negotiated in the normal manner. The client is thus in largely the same position as he would be if there were no advertising. In light of the benefits of advertising to those whose problem can be resolved at the advertised price, suppression is not warranted on account of the occasional client who misperceives his legal difficulties."
More recently (January 25, 1982), the United States Supreme Court considered an advertising program of a lawyer newly in private practice, which program included mailings to the general public, when it decided In re R.M.J. (1982) U.S. [102 S.Ct. 929].) The case interpreted rule 4 of the Missouri Supreme Court,which rule sought to regulate advertising by lawyers, and the Court held that, although the states retain the ability to regulate commercial speech that is inherently misleading or that has proved to be misleading in practice (such as lawyer advertising), 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 Court in In re R.M.J., supra, 102 S.Ct. at pp. 935, 938, took note of the fact that the Bates Court held that lawyers must be permitted to advertise the fees they charge for certain "routine" legal services and that it concluded that this sort of price advertising was not "inherently" misleading. It further recognized the special possibilities for deception presented by advertising for professional services in that the public's comparative lack of knowledge, the limited ability of the professions to police themselves, and the absence of any standardization in the "product," renders advertising for professional services especially susceptible to abuses that the states have a legitimate interest in controlling. In doing so, it found that In re R.M.J. did not violate Missouri Rule 4.
The Advisory Committee (which is charged with the enforcement of the Missouri Rules) argued that a general mailing from a lawyer would be "frightening" to the public unaccustomed to receiving letters from law offices. The Supreme Court, seeking to allay this concern, states in the footnote: "If indeed this is likely, the lawyer could be required to stamp 'This is an advertisement' on the envelope." (In re R.M.J., supra, 102 S.Ct. at p. 939.)
In light of the foregoing ethical and legal considerations, the Committee concludes that rule 2-101(A) of the Rules of Professional Conduct does not prohibit the inclusion of details of charges for "routine" legal services or a list of the qualifications of firm members per se. Indeed, both of these elements are consistent with providing enough information upon which members of the public can make an informed choice of legal counsel, although members of the bar should take care that their communications are not false, misleading or deceptive.
Details of charges for a lawyer's fees for "routine" legal services are not inherently misleading. To avoid misleading the public, however, a member may wish to define the services that are included within an advertised package. Moreover, a member may choose to add disclaimers or warnings concerning any limitations on the advertised price in order to avoid confusion or false hopes on the part of consumers.
In the event that members are concerned that a lawyer's letter arriving in the mail might frighten or intimidate members of the public who receive it (cf. rule 2-101 (A)(6), Rules Prof. Conduct), a member may chose to follow the suggestion of the United States Supreme Court in In re R.M.J., supra, 102 S.Ct. at page 939, by including the words "This is an advertisement" on the envelope. The Rules of Professional Conduct do not require that this admonishment be included in the communication nor do the standards governing communications adopted by the Board of Governors of the State Bar; however, such cautionary statement may well meet the highest standard of ethical conduct in safeguarding the consuming public.
Allied to the specification of legal fees and costs is rule 2-107 of the California Rules of Professional Conduct which states the elements to be considered in seeking to avoid an illegal or unconscionable fee. The amount of the fee to be advertised is not at issue in this opinion, except to the extent that the inquiring lawyer should be cognizant of rule 2-107 in determining the fees for the advertised services.
Finally, with respect to the matter of specifying qualifications of firm members in a letter to nonclients, the attorney should consider the standards promulgated by the Board of Governors of the State Bar concerning what communications will be presumed to violate subdivisions (A) or (B) of rule 2-101 of the Rules of Professional Conduct. More specifically, standard (2) reads as follow:
"A 'communication' which contains testimonials about or endorsements of a member is presumed to violate rule 2-101 of the Rules of Professional Conduct."
Identifying the jurisdictions in which a lawyer or other members of the firm are licensed to practice is not misleading on its face since it is factual and highly relevant information, particularly in light of the geography of the region in which a lawyer may practice and the mobility of our California residents.
However, members of the bar should note that the United States Supreme Court found "troubling" the listing in large boldface type that a lawyer was a member of the bar of the Supreme Court:
"... The emphasis of this relatively uninformative fact is at least bad taste. Indeed, such a statement could be misleading to the general public unfamiliar with the requirements of admission to the bar of this Court .... "(In re R.M.J., supra, 102 S.Ct. at p. 939.)
Concerning any description of the qualifications of members which might imply or state that the member has special expertise in a particular field or area of the law, the bar should note the intent of the drafters of rule 2-101(A)(5) of the Rules of Professional Conduct:
"Attorneys who are not certified specialists are permitted to use such words and phrases as 'specialist,' 'specializing in,' 'practice limited to,' 'experience in' and words of similar import, so long as they are true and not misleading. (The use of the term 'specialist' with respect to a field of law in which the Board of Legal Specialization conducts a specialization program may be misleading if an attorney is not Board certified.)" (Report and Recommendations of the Special Committee on Advertising and Solicitation (November 1978), p. 27.)
Finally, members who hold themselves out to members of the public as having special qualifications or expertise may be held to the duty of care of a specialist. (Wright v. Williams (1975) 47 Cal. App.3d 862 [121 Cal. Rptr. 194].)
It is conceded that the conclusion of this Committee gives limited guidance to the bar, but such result was anticipated by Mr. Justice Rehnquist in Bates v. State Bar of Arizona, supra, 433 U.S. at page 405:
"Once the exception of commercial speech from the protection of the First Amendment which had been established by Valentine v. Chrestensen [316 U.S. 52, (1942)] was abandoned, the shift to case by case adjudication of First Amendment claims of advertisers was a predictable consequence."
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.