Ethical Rules in California Advertising and Solicitation

1. Ethical Rules in CaliforniaAdvertising and Solicitation Week 4

2. Recognizing the Ethical Issue Many “ethical issues” turn into “ethical problems” (and sometimes “ethical nightmares”) because they go unnoticed until actual harm has occurred Therefore, recognizing an ethical issue at its inception is crucial

3. Researching an Answer There is too much law to know all of it Therefore, goal is to help you gain the tools you will need to research the law as you need it We will introduce you to the research tools for ethics in California

4. Some terms we need “Legal ethics” is the same as “professional responsibility” The American Bar Association Voluntary association Has many committees on all areas of the law Has created “models” or sample rules of ethics Usually called “the ABA”

5. More terms we need State Bar Association Many states have bar associations that regulate lawyers in that state

6. The Rules of Ethics are Fairly concrete Written Statutory Rules Adopted by each state (and federal jurisdictions) Expanded upon and explained by case law

7. The Rules of Ethics are not Found in one place They are scattered throughout other law, such as Evidence Code Probate Code Business & Profession State Court rules Federal Court rules The same as “morals”

8. The Rules of Ethics are not the rules of morality Professional responsibility rules are not about being “good” Professional responsibility rules are about acting legally Important: the law counts; personal morality counts less

9. Hey! Those are lawyer rules! True. state ethical codes address themselves to lawyers California has no rule that specifically extends all the lawyers rules of ethics to paralegals However! Most of the rules do apply to paralegals

10. Most of the rules of ethics written for lawyers apply to paralegals, too Example: lawyers must keep client secrets confidential Paralegals must, too! Example: lawyers have a duty to keep fair time sheets Paralegals have the same duty!

11. Some lawyer laws only apply to lawyers Example: lawyers have a duty to supervise their paralegals Paralegals don’t have that duty Example: some states allow lawyers to accept referral fees Paralegals are never allowed referral fees

12. Some lawyer laws apply to paralegals, but in a different way Lawyer advertising is highly regulated Paralegals cannot advertise directly to the public, but that is highly regulated, too!

13. Where do lawyer ethics rules come from? First appeared 1900-ish ABA wrote a sample and states used them to write their own laws 1960’s ABA wrote a new model “Model Code of Professional Responsibility” – used as a model by 49 states (not CA) 1980’s ABA wrote new model “Model Rules of Professional Conduct” Latest revision: 2002-ish

14. Paralegals have their own ethical codes, too. Various paralegal organizations have codes of ethics. If you are a member, you must abide by those rules

15. What happens if paralegals violate the rules of ethics? Paralegals can be: Fired Stripped of association membership Sanctioned by the court

16. “Independent Paralegals” • Cannot use term “Paralegal” in California • Regulated by Business and Professions Code

17. Independent Paralegals • Legal Document Assistants • Unlawful Detainer Assistant • Immigration Consultant • Requires registration with county and bond

18. Attorney and Paralegal Ethics • Attorneys • California Rules of Professional Conduct--MANDATORY • County Bar Assoc.--voluntary • ABA Model Rules • Paralegals • N.A.L.A. Guidelines • N.F.P.A. Guidelines

19. CALIFORNIA RULES OF PROFESSIONAL CONDUCT • RELATIONSHIPS WITH OPPOSING LAWYERS • LIMITING LIABILITY TO CLIENT • COMMUNICATING W. CLIENT • ORGANIZATION AS CLIENT • TERMINATION OF EMPLOYMENT • TRUST ACCOUNTS • FEES • PAYMENT OF CLIENT BILLS • THREATENING CRIMINAL CHARGES • U.P.L. • FEE SHARING WITH NON-LAWYERS • MISLEADING ADVERTISING • COMMUNICATION WITH REPRESENTED PARTIES • FAILING TO ACT COMPETENTLY • MERITLESS ACTIONS • ADVISING THE VIOLATION OF LAW • CONFLICTS OF INTEREST--BUSINESS AND PERSONAL

20. RULES OF CONDUCT, CONT. • PROSECUTOR’S DUTY • TRIAL CONDUCT • LAWYER AS WITNESS • CONTACT WITH JUDGE, JURY • SUPPRESSION OF EVIDENCE • SEXUAL CONDUCT WITH CLIENTS

21. “UNWRITTEN” RULES • CLIENT CONFIDENTIALITY • FIDUCIARY DUTY

22. Advertising and Solicitation • Advertising is now constitutionally protected • Can be subject to some restrictions • Solicitation—direct contact with a prospective client • Subject to greater restrictions

23. Advertising--California • Rule 1-400 and includes • Advertisement to general public • Communication to past, present or future client • Any use of firm name, stationery, business card, etc. • Solicitation

24. Restrictions • Cannot contain untrue statement • Cannot contain any matter that is false, deceptive, confusing, misleading • Omit a fact resulting in misleading, etc. • Fail to state it is a solicitation • Be transmitted in intrusive, or harassing manner • State that member is “certified specialist” unless he or she is

25. Additional Restriction--Solicitation • Direct solicitation prohibited unless • Member has family relationship • Member has prior professional relationship • It is constitutionally permitted • Member is discharging duty to present or prior client

26. Requirements • Member must keep copy for 2 years • Provide copy to Bar if requested • Support any statement contained in ad if requested by Bar

27. Rule 1-400. Advertising and Solicitation (A) For purposes of this rule, "communication" means any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client, including but not limited to the following: (1) Any use of firm name, trade name, fictitious name, or other professional designation of such member or law firm; or (2) Any stationery, letterhead, business card, sign, brochure, or other comparable written material describing such member, law firm, or lawyers; or (3) Any advertisement (regardless of medium) of such member or law firm directed to the general public or any substantial portion thereof; or (4) Any unsolicited correspondence from a member or law firm directed to any person or entity.

28. (B) For purposes of this rule, a "solicitation" means any communication: (1) Concerning the availability for professional employment of a member or a law firm in which a significant motive is pecuniary gain; and (2) Which is; (a) delivered in person or by telephone, or (b) directed by any means to a person known to the sender to be represented by counsel in a matter which is a subject of the communication.

29. C) A solicitation shall not be made by or on behalf of a member or law firm to a prospective client with whom the member or law firm has no family or prior professional relationship, unless the solicitation is protected from abridgment by the Constitution of the United States or by the Constitution of the State of California. A solicitation to a former or present client in the discharge of a member's or law firm's professional duties is not prohibited.

30. (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 (6) 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. (Repealed by the Supreme Court, effective November 30, 1992)

31. (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.

32. F) A member shall retain for two years a true and correct copy or recording of any communication made by written or electronic media. Upon written request, the member shall make any such copy or recording available to the State Bar, and, if requested, shall provide to the State Bar evidence to support any factual or objective claim contained in the communication.