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Legal Marketing Do's and Don'ts: Legal Advertising Rules, Negligent Referral, and the SJCBA Lawyer Referral Service


Legal Advertising Rules

Referrals are the cornerstone of any attorney's legal marketing strategy. You might believe that if you do good work, people will automatically come to you. While that can be the case for long-established practitioners with wide word-of-mouth networks, there are plenty of attorneys who advertise themselves through practically every medium, from print media to websites to the sides of buses and billboards.

Until the 1977 landmark U.S. Supreme Court decision in Bates v. State Bar of Arizona, 433 U.S. 350, lawyer advertising was unlawful. The Bates decision extended First Amendment protection to legal advertising on the basis that allowing attorneys to advertise serves a public policy by providing consumers with information about the cost and availability of legal services. It held that under the First Amendment, only reasonable regulation of lawyer advertising is permissible, such as placing limitations upon time and place or upon false or misleading content.

California has since enacted rules regarding attorney advertising in the form of California Rules of Professional Conduct, Rule 1-400 and Business and Professions Code sections 6157-6159.2. Rules 1-400(A) and (B) distinguish between the terms "communication" and "solicitation." A communication is any message or offer concerning availability for legal employment directed to a former, present, or prospective client, and includes unsolicited correspondence and advertisements to the general public. Conversely, a solicitation is a communication that concerns the availability for legal employment for pecuniary gain and is defined as either delivered in person, by telephone, or directed to a person known by the sender to be already represented by counsel in the subject matter of the communication.

Pursuant to Rule 1-400(C), communications are permissible so long as they do not meet the definition of solicitation. Solicitations are flatly prohibited if not made to someone with whom the lawyer has a family or prior professional relationship unless the communication is otherwise constitutionally protected. However, Rule 1-400(C) does not address what types of telephonic or face-to-face solicitations are constitutionally-protected speech. Because disciplinary prosecutions before the Bar for truthful solicitation are rare, the "constitutionally protected" exception to the bar on solicitation remains relatively untested. For example, are you engaging in constitutionally-protected speech when you tell a prospective client over drinks that you can handle his litigation needs at competitive rates?

The Business and Professions Code provides some clear lines in the realm of advertising. Section 6158.1 sets forth a rebuttable presumption that certain types of advertising are deceptive. These include messages about the ultimate result of a specific case presented out of context and without adequately providing information as to the facts or law, graphic depictions of events which may give rise to a claim for compensation, and messages about money received by or for a client in a particular case or the potential monetary recovery for a prospective client.

Section 6158.2 creates a presumed safe harbor for certain biographical content online or on radio or TV networks, provided that it is not false, misleading, or deceptive. This includes an attorney's name, address, contact information, field of practice, educational history and date of admission to the bar, as well as any professional authorship and membership. If these advertisements describe any particular case, they must also provide a disclosure according to the terms of Section 6158.3.

Understanding the rules and statutes governing legal advertising is a necessary prerequisite before embarking on any advertising campaign. Once these requirements are satisfied, however, there is often a secondary consideration that comes into play: referrals away from your practice for clients you do not serve.

Negligent Referrals and the SJCBA Lawyer Referral Service

If after marketing your practice you receive a call from a potential client whom you are unable to assist, what should you do? If you refer the caller to another attorney, you run the risk of exposing yourself to malpractice and negligent referral actions if the other attorney fails to adequately represent the client.

The SJCBA's Lawyer Referral Service ("LRS") allows attorneys to refer potential clients to a panel of screened attorneys and provides the referrer with immunity from negligent referrals. When you refer a potential client to the Lawyer Referral Service, you are protected from any cause of action brought against you for negligent referral. Under Civil Code section 43.95(a), no cause of action can arise against an attorney or authorized referral service for acts of negligence or unprofessional conduct committed by a professional to whom a member of the public was referred.

Referring clients that you are unable to assist to LRS protects you from liability and allows the client to be referred to a qualified and experienced attorney. The SJCBA's Lawyer Referral Service is certified by the State Bar of California. The Association has been providing assistance to the San Joaquin County community since 1959 through this service. The panel of attorneys go through an application process and are subject to a biannual peer review.

The Lawyer Referral Service may be reached at (209) 948-4620 (phone) and (209) 948-1361 (fax). More information on LRS is available online at sjcbar.org/ lawyer-referral-service. 



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