Rule 7.2 Advertising (Rule Approved by the Supreme Court

Rule 7.2 Advertising

(Rule Approved by the Supreme Court, Effective November 1, 2018)

(a) Subject to the requirements of rules 7.1 and 7.3, a lawyer may advertise services

through any written,* recorded or electronic means of communication, including

public media.

(b) A lawyer shall not compensate, promise or give anything of value to a person* for

the purpose of recommending or securing the services of the lawyer or the

lawyer’s law firm,* except that a lawyer may:

(1) pay the reasonable* costs of advertisements or communications permitted

by this rule;

(2) pay the usual charges of a legal services plan or a qualified lawyer referral

service. A qualified lawyer referral service is a lawyer referral service

established, sponsored and operated in accordance with the State Bar of

California’s Minimum Standards for a Lawyer Referral Service in California;

(3) pay for a law practice in accordance with rule 1.17;

(4) refer clients to another lawyer or a nonlawyer professional pursuant to an

arrangement not otherwise prohibited under these Rules or the State Bar

Act that provides for the other person* to refer clients or customers to the

lawyer, if:

(i) the reciprocal referral arrangement is not exclusive; and

(ii) the client is informed of the existence and nature of the arrangement;

(5) offer or give a gift or gratuity to a person* having made a recommendation

resulting in the employment of the lawyer or the lawyer’s law firm,*

provided that the gift or gratuity was not offered or given in consideration

of any promise, agreement, or understanding that such a gift or gratuity

would be forthcoming or that referrals would be made or encouraged in

the future.

address of at least one lawyer or law firm* responsible for its content.

Comment

[1] This rule permits public dissemination of accurate information concerning a

lawyer and the lawyer’s services, including for example, the lawyer’s name or firm*

name, the lawyer’s contact information; the kinds of services the lawyer will undertake;

the basis on which the lawyer’s fees are determined, including prices for specific

services and payment and credit arrangements; a lawyer’s foreign language ability;

names of references and, with their consent, names of clients regularly represented;

and other information that might invite the attention of those seeking legal assistance.

This rule, however, prohibits the dissemination of false or misleading information, for

example, an advertisement that sets forth a specific fee or range of fees for a particular

service where, in fact, the lawyer charges or intends to charge a greater fee than that

stated in the advertisement.

[2] Neither this rule nor rule 7.3 prohibits communications authorized by law, such as

court-approved class action notices.

Paying Others to Recommend a Lawyer

[3] Paragraph (b)(1) permits a lawyer to compensate employees, agents, and vendors

who are engaged to provide marketing or client-development services, such as publicists,

public-relations personnel, business-development staff, and website designers. See rule

5.3 for the duties of lawyers and law firms* with respect to supervising the conduct of

nonlawyers who prepare marketing materials and provide client development services.

[4] Paragraph (b)(4) permits a lawyer to make referrals to another lawyer or nonlawyer

professional, in return for the undertaking of that person* to refer clients or customers to

the lawyer. Such reciprocal referral arrangements must not interfere with the lawyer’s

professional judgment as to making referrals or as to providing substantive legal services.

(See rules 2.1 and 5.4(c).) Conflicts of interest created by arrangements made pursuant

to paragraph (b)(4) are governed by rule 1.7. A division of fees between or among

lawyers not in the same law firm* is governed by rule 1.5.1.

NEW RULES OF PROFESSIONAL CONDUCT 7.2, 7.3, 7.4 & 7.5

(Former Rule 1-400)

Advertising and Solicitation

EXECUTIVE SUMMARY

The Commission for the Revision of the Rules of Professional Conduct (“Commission”)

evaluated current rule 1-400 (Advertising and Solicitation) in accordance with the Commission

Charter, with a focus on the function of the rule as a disciplinary standard, and with the

understanding that the rule comments should be included only when necessary to explain a rule

and not for providing aspirational guidance. In addition, the Commission considered the national

standard of the ABA counterparts to rule 1-400, which comprise a series of rules that are

intended to regulate the commercial speech of lawyers: Model Rules 7.1 (Communication

Concerning A Lawyer’s Services), 7.2 (Advertising), 7.3 (Solicitation of Clients), 7.4

(Communication of Fields of Practice and Specialization), and 7.5 (Firm Names and

Letterheads).

Rule As Issued For 90-day Public Comment

The result of the Commission’s evaluation is a three-fold recommendation for implementing:

(1) The Model Rules’ framework of having separate rules that regulate different aspects

of lawyers’ commercial speech:

Proposed rule 7.1 sets out the general prohibition against a lawyer making false and

misleading communications concerning the availability of legal services.

Proposed rule 7.2 will specifically address advertising, a subset of communication.

Proposed rule 7.3 will regulate marketing of legal services through direct contact with

a potential client either by real-time communication such as delivered in-person or by

telephone, or by directly targeting a person known to be in need of specific legal

services.

Proposed rule 7.4 will regulate the communication of a lawyer's fields of practice and

claims to specialization.

Proposed rule 7.5 will regulate the use of firm names and trade names.

(2) The retention of the Board’s authority to adopt advertising standards provided for in

current rule 1-400(E). Amendments to the Board’s standards, including the repeal of

a standard, require only Board action; however, many of the Commission’s changes

to the advertising rules themselves are integral to what is being recommended for

the Board adopted standards. Although the Commission is recommending the

repeal of all of the existing standards, many of the concepts addressed in the

standards are retained and relocated to either the black letter or the comments of the

proposed rules.

(3) The elimination of the requirement that a lawyer retain for two years a copy of any

advertisement or other communication regarding legal services.

The five proposed rules were adopted by the Commission during its March 31-April 1, 2016

meeting. Following consideration of public comment, a change was made to proposed rule 7.1

and rule 7.1 was circulated for an additional 45-day public comment period. There were no

substantive changes made to proposed rules 7.2, 7.3, 7.4, and 7.5. See the Executive Summary

for proposed rule 7.1.

1. Recommendation of the ABA Model Rule Advertising & Solicitation Framework.

The partitioning of current rule 1-400 into several rules corresponding to Model Rule

counterparts is recommended because advertising of legal services and the solicitation of

potential clients is an area of lawyer regulation where greater national uniformity would be

helpful to the public, practicing lawyers, and the courts. The current widespread use of the

Internet by lawyers and law firms to market their services and the trend in most jurisdictions,

including California, toward permitting some form of multijurisdictional practice, warrants

such national uniformity. In addition, a degree of uniformity should follow from the fact that

all jurisdictions are bound by the constitutional commercial speech doctrine when seeking to

regulate lawyer advertising and solicitation.

2. Recommendation to repeal or relocate the current Standards into the black letter or

comments of the relevant proposed rule but to retain current rule 1-400(E), which

authorizes the Board to promulgate Standards. The standards are not necessary to regulate

inherently false and deceptive advertising. The Commission reviewed each of the standards and

determined that most fell into that category. Further, as presently framed, the presumptions

force lawyers to prove a negative. They thus create a lack of predictability with respect to how a

particular bar regulator might view a given advertisement. The standards also create a risk of

inconsistent enforcement and an unchecked opportunity to improperly regulate "taste" and

"professionalism" in the name of "misleading" advertisements. In the absence of deception or

illegal activities, regulations concerning the content of advertisements are constitutionally

permitted only if they are narrowly drawn to advance a substantial governmental interest.

Central Hudson Gas & Elec. v. Pub. Serv. Comm'n, 447 U.S. 557 (1980); Alexander v. Cahill,

598 F.3d 79 (2d Cir. 2010) (state's ban on "advertising techniques" that are no more than

potentially misleading are unconstitutionally broad).

Nevertheless, although the Commission’s review led it to conclude that none of the current

standards should be retained as standards, it determined that proposed rule 7.1 should carry

forward current rule 1-400(E), the standard enabling provision, in the event future developments

in communications or law practice might warrant the promulgation of standard to regulate lawyer

conduct.

3. Recommendation to eliminate the record-keeping requirement. Following the lead of

most jurisdictions in the country and the ABA itself, the Commission recommends eliminating

the two-year record-keeping requirement in current rule 1-400(F). The ABA Ethics 2000

Commission explained the rationale for the deletion of the requirement, which had appeared in

Model Rule 7.2:

“The requirement that a lawyer retain copies of all advertisements for two years

has become increasingly burdensome, and such records are seldom used for

disciplinary purposes. Thus the Commission, with the concurrence of the ABA

Commission on Responsibility in Client Development, is recommending

elimination of the requirement that records of advertising be retained for two

years.” (See ABA Reporter’s Explanation of Changes, rule 7.2(b).)

The Commission also notes that because a “web page” is an electronic communication, (see

State Bar Formal Ethics Op. 2001-155), it would be extraordinarily burdensome to require a

lawyer to retain copies of each web page given how often the information on web pages are

changed, and how often web pages are deleted. Nevertheless, the Commission also notes that

even with the deletion of the requirement in rule 1-400(F), a one-year retention requirement

would remain in Business and Professions Code section 6159.1.

A description of each of the proposed rules follows.

Rule 7.2 (Advertising)

As noted, proposed rule 7.2 would specifically address advertising, a subset of communication.

Paragraph (a), derived from Model Rule 7.2(a) as modified, permits lawyers to advertise to the

general public their services through any written, recorded or electronic media, provided the

advertisement does not violate proposed rule 7.1 (prohibition on false or misleading

communications) or 7.3 (prohibition on in-person, live telephone or real-time electronic

communications). The addition to Model Rule 7.2(a) language of the terms “any” and “means of”

are intended to signal that the different modes of communication listed (written, recorded and

electronic) are expansive and not limited to currently existing technologies.

Paragraph (b) prohibits a lawyer from paying a person for recommending the lawyer’s services

except in the enumerated circumstances set forth in subparagraphs (b)(1) through (b)(5).

Subparagraph (b)(1) carries forward current rule 1-320’s Discussion paragraph, which does not

“preclude compensation to the communications media in exchange for advertising the member's

or law firm's availability for professional employment.” The term “reasonable” was added to

modify “costs” to ensure such advertising costs do not amount to impermissible fee sharing with

a nonlawyer. Subparagraph (b)(2) clarifies that payment of “usual charges” to a qualified lawyer

referral service is not the impermissible sharing of fees with a nonlawyer. Subparagraph (b)(3)

carries forward the exception in current rule 2-200(B). Subparagraph (b)(4) has no counterpart in

the California rules. However, permitting reciprocal referral arrangements recognizes a common

mechanism by which clients are paired with lawyers or nonlawyer professionals. Because these

arrangements are permitted only so long as they are not exclusive and the client is made aware

of them, public protection is preserved. Subparagraph (b)(5) carries forward the substance of the

second sentence of current rules 2-200(B) and 3-120(B), which permit such gifts to lawyers and

nonlawyers, respectively.

Paragraph (c), derived from Model Rule 7.2(c), as modified, requires the name and address of

at least one lawyer responsible for the advertisement’s content. It carries forward the concept in

current Standard No. 12.

There are four comments that provide interpretative guidance or clarify how the rule should

be applied. Comment [1] provides interpretive guidance on the kinds of information that would

generally not be false or misleading by providing a non-exhaustive list of permissible information.

The comment’s last sentence carries forward the substance of rule 1-400, Standard No. 16

regarding misleading fee information. Comment [2] clarifies that neither rule 7.2 nor 7.3

[Solicitation of Clients] prohibits court-approved class action notices, a common form of

communication with respect to the provision of legal services. Comment [3] provides interpretive

guidance by clarifying that a lawyer may not only compensate media outlets that publish or air

the lawyer’s advertisements, but also may retain and compensate employees or outside

contractors to assist in the marketing the lawyer’s services, subject to proposed rule 5.3

(Responsibilities Regarding Nonlawyer Assistants). Comment [4] clarifies how the rule should be

applied to reciprocal referral arrangements, as permitted under subparagraph (b)(4), specifically

focusing on the concept that such arrangements must not compromise a lawyer’s independent

professional judgment.

Rule 7.3 (Solicitation of Clients)

As noted, proposed rule 7.3 would regulate marketing of legal services through direct contact

with a potential client either by real-time communication such as delivered in-person or by

telephone, or by directly targeting a person known to be in need of specific legal services

through other means, e.g., letter, email, text, etc. It carries forward concepts that are found in

current rule 1-400(B), (C), (D)(5) and Standard Nos. 3, 4, and 5.

Paragraph (a), derived from Model Rule 7.3(a), carries forward the concept of current rule 1-

400(C), which contains the basic prohibition against what is traditionally understood to constitute

improper “solicitation” of legal business by a lawyer engaging in real-time communication with

potential clients. The concern is the ability of lawyers to employ their “skills in the persuasive

arts” to overreach and convince a person in need of legal services to retain the lawyer without

the person having had time to reflect on this important decision. The provision thus eliminates

the opportunity for a lawyer to engage in real-time (i.e., contemporaneous and interactive)

communication with a potential client. The term “real-time electronic contact” has been added

from Model Rule 7.3 because the same concerns regarding in-person or live telephone

communications applies to real-time electronic contact such as communications in a chat room

or by instant messaging. The two exceptions to such solicitations are included because there is

significantly less concern of overreaching when the solicitation target is another lawyer or has

an existing relationship with the soliciting lawyer.

Paragraph (b), derived from Model Rule 7.3(b), is a codification of Shapero v. Kentucky Bar

Ass’n (1988) 486 U.S. 466, in which the Supreme Court held that a state could not absolutely

prohibit direct targeted mailings. The provision, however, recognizes that there are

circumstances under which even any kind of communication with a client, including those

permitted under rule 7.2, should be prohibited. Such circumstances include when the person

being solicited has made known to the lawyer a desire not to be contacted or when the

solicitation by the lawyer “is transmitted in any manner which involves intrusion, coercion, duress

or harassment.” The latter situation largely carries forward the prohibition in current rule 1-

400(D)(5). The Commission, however, determined that additional language in the latter

provision, i.e., “compulsion,” “intimidation,” “threats” and “vexatious conduct,” are subsumed in

the four recommended terms: “intrusion, coercion, duress and harassment.”

Paragraph (c), derived from Model Rule 7.3(c), largely carries forward current rule 1-400,

Standard No. 5, and requires that every written, recorded or electronic communication from a

lawyer seeking professional employment from a person known to be in need of legal services in

a particular matter, i.e., direct targeted communications, must include the words “Advertising

Material” or words of similar import. The provision is intended to avoid members of the public

being misled into believing that a lawyer’s solicitation is an official document that requires their

response.

Paragraph (d), derived from Model Rule 7.3(d), would permit a lawyer to participate in a pre-

paid or group legal service plan even if the plan engages in real-time solicitation to recruit

members. Such plans hold promise for improving access to justice. Further, unlike a lawyer’s

solicitation of a potential client for a particular matter where there exists a substantial concern

for overreaching by the lawyer, there is little if any concern if the plan itself engages in in-

person, live telephone or real-time electronic contact to solicit memberships in the plan.

Paragraph (e), derived in part from Model Rule 7.3, cmt. [1], has been added to the black letter

to clarify that a solicitation covered by this rule: (i) can be oral, (paragraph (a)) or written

(paragraph (b)); and (ii) is a communication initiated by or on behalf of the lawyer. The first point

is important because the traditional concept of a “solicitation” is of a “live” oral communication

in-person or by phone. The second point is an important reminder that a lawyer cannot avoid

the application of the rule by acting through a surrogate, e.g., runner or capper.

There are four comments that provide interpretative guidance or clarify how the rule should

be applied. Comment [1] clarifies that a communication to the general public or in response

to an inquiry is not a solicitation. Comment [2] provides an important clarification that a lawyer

acting pro bono on behalf of a bona fide public or charitable legal services organization is not

precluded under paragraph (a) from real-time solicitation of a potential plaintiff with standing to

challenge an unfair law, e.g., school desegregation laws. This clarification can contribute to

access to justice by alerting lawyers that real-time solicitations under conditions present in the

cited Supreme Court opinion, In re Primus, are not prohibited. Comment [3] clarifies the

application of paragraph (d). Comment [4] clarifies that regardless of whether the lawyer is

providing services under the auspices of a permitted legal services plan, the lawyer must

comply with the cited rules.

Savings Clause. In addition to the foregoing recommended adoptions, the Commission

recommends the deletion of the savings clause in current rule 1-400(C) (“unless the solicitation

is protected from abridgment by the Constitution of the United States or by the Constitution of

the State of California.”) The clause was added to the original California advertising rule in 1978

following the Supreme Court’s decision in Bates v. State Bar of Arizona, when it was uncertain

the extent to which limitations placed on lawyer commercial speech could survive Constitutional

challenge. The clause’s continued vitality is questionable at best. Through its decisions in the

decades since Bates, the Supreme Court has repeatedly held that a state’s regulation of a

lawyer’s initiation of in-person or telephonic contact with a member of the public does not violate

the First Amendment. The Commission concluded that the clause is no longer necessary.

Current Rule 1-400(B)(2)(b). The Commission also recommends the deletion of current rule

1-400(B)(2)(b), which includes in that rule’s definition of “solicitation” a communication delivered

in person or by telephone that is “(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.” In

recommending its deletion, the Commission reasoned that although the conduct described in

1-400(B)(2)(b) might give rise to a civil remedy for tortious interference with a contractual

relationship, the provision does not belong in a disciplinary rule. Moreover, there are potential

First Amendment issues with retaining this prohibition.

Rule 7.4 (Communication of Fields of Practice and Specialization)

As noted, proposed rule 7.4 would regulate the communication of a lawyer's fields of practice

and claims to specialization. It carries forward concepts that are found in current rule 1-

400(D)(6).

Paragraph (a), derived from Model Rule 7.4(d), as modified, states the general prohibition

against a lawyer claiming to be a “certified specialist” unless the lawyer has been so certified by

the Board of Legal Specialization or any accrediting entity designated by the Board. Placing this

provision first is a departure from the Model Rule paragraph order. However, in conformance

with the general style format for disciplinary rules, the Commission concluded that this

prohibitory provision should come first, followed by paragraph (b), which identifies statements a

lawyer is permitted to make regarding limitations on the lawyer’s practice.

Paragraph (b), derived from Model Rule 7.4(a), permits a lawyer to communicate that the lawyer

does or does not practice in particular fields of law. A sentence has been added that provides a

lawyer may engage in a common practice among lawyers who market their availability by

communicating that the lawyer’s practice specializes in, is limited to, or is concentrated in a

particular field of law.

The Commission does not believe any comments are necessary to clarify the black letter of the

proposed rule.

Recommended rejections of Model Rule provisions. The Commission does not recommend

adoption of Model Rule 7.4(b) or (c), both of which are statements regarding practice limitations

or specializations that have been traditionally recognized (patent law in MR 7.4(b) and admiralty

law in MR 7.4(c)), but which come within the more general permissive language of proposed

paragraph (b).

Rule 7.5 (Firm Names and Trade Names)

As noted, proposed rule 7.5 will regulate the use of firm names and trade names. It carries

forward concepts in current rule 1-400(A), which identifies the kinds of communications the rule

is intended to regulate, and Standard Nos. 6 through 9.

Paragraph (a) sets forth the general prohibition by clarifying that any use of a firm name, trade

name or other professional designation is a “communication” within the meaning of proposed rule

7.1(a) and, therefore must not be false or misleading. The Commission, however, recommends

departing from both current rule 1-400 and Model Rule 7.5 by eliminating the term “letterhead,”

which is merely a subset of “professional designation” and has largely been supplanted by email

signature blocks. (See also discussion re the single comment to this rule.

Paragraph (b), derived from the second sentence of Model Rule 7.5(a), as modified to be

prohibitory rather than permissive, carries forward the concept in Standard No. 6 regarding

communications that state or imply a relationship between a lawyer and a government agency.

Paragraph (c), derived from Model Rule 7.5(d), as modified to be prohibitory rather than

permissive, carries forward the concepts in Standard Nos. 7 and 8 that prohibit communications

that state or imply a relationship between a lawyer and a law firm or other organization unless

such a relationship exists.

Standard No. 6 provides the following is a presumed violation of rule 1-400:

(6) A “communication” in the form of a firm name, trade name, fictitious name, or other

professional designation which states or implies a relationship between any member in private

practice and a government agency or instrumentality or a public or non-profit legal services

organization.

Standard Nos. 7 and 8 provide the following are presumed violations of rule 1-400:

(7) A “communication” in the form of a firm name, trade name, fictitious name, or other

professional designation which states or implies that a member has a relationship to any other

lawyer or law firm as a partner or associate, or officer or shareholder pursuant to Business and

Professions Code sections 6160-6172 unless such relationship in fact exists.

There is a single comment that provides an explanation of the scope of the term, “other

professional designation,” which includes not only traditional letterheads but also more recent

law marketing innovations such as logos, URLs and signature blocks.

Post-Public Comment Revisions

After consideration of comments received in response to the initial 90-day public comment

period, the Commission made non-substantive stylistic edits to proposed rule 7.2 and voted to

recommend that the Board adopt the proposed rule.

After consideration of comments received in response to the initial 90-day public comment

period, the Commission made no changes to proposed rules 7.3, 7.4, and 7.5. The

commission voted to recommend that the Board adopt the proposed rule.

The Board adopted proposed rules 7.2, 7.3, 7.4, and 7.5 at its November 17, 2016 meeting.

Supreme Court Action (May 10, 2018)

The Supreme Court approved rule 7.2 as modified by the Court to be effective November 1,

2018. In paragraph (b) and subparagraph (b)(5), the phrase “or entity” was deleted. (See also

the Court’s modifications to the definition of “person” in rule 1.0.1(g-1).) The Court approved

rules 7.3, 7.4 and 7.5 as submitted by the State Bar to be effective November 1, 2018. In

rule 7.3, omitted asterisks were added by the Court.

(8) A “communication” which states or implies that a member or law firm is “of counsel” to another

lawyer or a law firm unless the former has a relationship with the latter (other than as a partner or

associate, or officer or shareholder pursuant to Business and Professions Code sections 6160-

6172) which is close, personal, continuous, and regular.

Current CA

Rule 1-400

Advertising

Standard

Text of Current CA Rule 1-400 Advertising

Standard

Retained/

Repealed/

Relocated

New Location, If

Any

(1)

A “communication” which contains guarantees,

warranties, or predictions regarding the result of the

representation.

Relocated Rule 7.1

Comment [2]

(2)

A “communication” which contains testimonials

about or endorsements of a member unless such

communication also contains an express disclaimer

such as “this testimonial or endorsement does not

constitute a guarantee, warranty, or prediction

regarding the outcome of your legal matter.”

Relocated Rule 7.1

Comment [4]

(3)

A “communication” which is delivered to a potential

client whom the member knows or should

reasonably know is in such a physical, emotional, or

mental state that he or she would not be expected to

exercise reasonable judgment as to the retention of

counsel.

Repealed (But see Rule

7.3(b)(2))

(4)

A “communication” which is transmitted at the scene

of an accident or at or en route to a hospital,

emergency care center, or other health care facility.

Repealed (Compare B&P

§ 6152(a)(1) re

running/capping)

(5)

A “communication,” except professional

announcements, seeking professional employment

for pecuniary gain, which is transmitted by mail or

equivalent means which does not bear the word

“Advertisement,” “Newsletter” or words of similar

import in 12 point print on the first page. If such

communication, including firm brochures,

newsletters, recent legal development advisories,

and similar materials, is transmitted in an envelope,

the envelope shall bear the word “Advertisement,”

“Newsletter” or words of similar import on the outside

thereof.

Relocated

Rule 7.3(c)

(6)

A “communication” in the form of a firm name, trade

name, fictitious name, or other professional

designation which states or implies a relationship

between any member in private practice and a

government agency or instrumentality or a public or

non-profit legal services organization.

Relocated

Rule 7.5(b)

Retained – The current Standard has been retained as a Standard in proposed Rule 7.1.

Repealed – The current Standard has been repealed.

Relocated – The substance of the current Standard has been modified and moved to either the black

letter text of a proposed rule or to a “Comment” to a proposed rule.

Page 1 of 4

Current CA

Rule 1-400

Advertising

Standard

Text of Current CA Rule 1-400 Advertising

Standard

Retained/

Repealed/

Relocated

New Location, If

Any

(7)

A “communication” in the form of a firm name, trade

name, fictitious name, or other professional

designation which states or implies that a member

has a relationship to any other lawyer or a law firm

as a partner or associate, or officer or shareholder

pursuant to Business and Professions Code sections

6160-6172 unless such relationship in fact exists.

Relocated

Rule 7.5(c)

(8)

A “communication” which states or implies that a

member or law firm is “of counsel” to another lawyer

or a law firm unless the former has a relationship

with the latter (other than as a partner or associate,

or officer or shareholder pursuant to Business and

Professions Code sections 6160-6172) which is

close, personal, continuous, and regular.

Repealed

(Compare Rule

5(c) although

that provision

does not refer to

“of counsel”)

See also, Rule

1.0.1

[Terminology]

Comment [2]

which

incorporates a

similar definition

(9)

A “communication” in the form of a firm name, trade

name, fictitious name, or other professional

designation used by a member or law firm in private

practice which differs materially from any other such

designation used by such member or law firm at the

same time in the same community.

Repealed (But see Rule

7.5(a) stating that

such names must

comply with Rule

7.1, prohibiting

false or

misleading

communications)

(10)

A “communication” which implies that the member or

law firm is participating in a lawyer referral service

which has been certified by the State Bar of

California or as having satisfied the Minimum

Standards for Lawyer Referral Services in California,

when that is not the case.

Repealed (But see Rule

7.1(a) for the

general

prohibition

against any false

or misleading

content)

(11)

(Repealed. See rule 1-400(D)(6) for the operative

language on this subject.)

Repealed

(Note: substance of

Rule 1-400(D)(6)

found in

Rule 7.4(a))

Page 2 of 4

Current CA

Rule 1-400

Advertising

Standard

Text of Current CA Rule 1-400 Advertising

Standard

Retained/

Repealed/

Relocated

New Location, If

Any

(12)

A “communication,” except professional

announcements, in the form of an advertisement

primarily directed to seeking professional

employment primarily for pecuniary gain transmitted

to the general public or any substantial portion

thereof by mail or equivalent means or by means of

television, radio, newspaper, magazine or other form

of commercial mass media which does not state the

name of the member responsible for the

communication. When the communication is made

on behalf of a law firm, the communication shall

state the name of at least one member responsible

for it.

Relocated

Rule 7.2(c)

(Note: unlike

Stnd. No. 12, a

name of a lawyer

is not required if

a name of a law

firm is provided)

(13)

A “communication” which contains a dramatization

unless such communication contains a disclaimer

which states “this is a dramatization” or words of

similar import.

Repealed (Compare B&P

§ 6157.2(c) re

impersonations,

dramatizations, &

spokespersons)

(14)

A “communication” which states or implies “no fee

without recovery” unless such communication also

expressly discloses whether or not the client will be

liable for costs.

Relocated Rule 7.1

Comment [3]

(15)

A “communication” which states or implies that a

member is able to provide legal services in a

language other than English unless the member can

actually provide legal services in such language or

the communication also states in the language of the

communication (a) the employment title of the

person who speaks such language and (b) that the

person is not a member of the State Bar of

California, if that is the case.

Alternatives:

Option 1 =

Relocated

Option 2 =

Retained

Option 1

Rule 7.1

Comment [5]

Option 2

Rule 7.1

Standard

Page 3 of 4

Current CA

Rule 1-400

Advertising

Standard

Text of Current CA Rule 1-400 Advertising

Standard

Retained/

Repealed/

Relocated

New Location, If

Any

(16)

An unsolicited “communication” transmitted to the

general public or any substantial portion thereof

primarily directed to seeking professional

employment primarily for pecuniary gain which sets

forth a specific fee or range of fees for a particular

service where, in fact, the member charges a greater

fee than advertised in such communication within a

period of 90 days following dissemination of such

communication, unless such communication

expressly specifies a shorter period of time regarding

the advertised fee. Where the communication is

published in the classified or “yellow pages” section

of telephone, business or legal directories or in other

media not published more frequently than once a

year, the member shall conform to the advertised fee

for a period of one year from initial publication,

unless such communication expressly specifies a

shorter period of time regarding the advertised fee.

Relocated Rule 7.2

Comment [1]

Page 4 of 4

Rule 7.2 Advertising

(Redline Comparison to the ABA Model Rule)

(a) Subject to the requirements of Rulesrules 7.1 and 7.3, a lawyer may advertise

services through any written,* recorded or electronic means of communication,

including public media.

(b) A lawyer shall not compensate, promise or give anything of value to a person* for

the purpose of recommending or securing the services of the lawyer or the

lawyer’s serviceslaw firm,* except that a lawyer may:

(1) pay the reasonable* costs of advertisements or communications permitted

by this Rulerule;

(2) pay the usual charges of a legal serviceservices plan or a not-for-profit or

qualified lawyer referral service. A qualified lawyer referral service is a

lawyer referral service that has been approved by an appropriate

regulatory authorityestablished, sponsored and operated in accordance

with the State Bar of California’s Minimum Standards for a Lawyer Referral

Service in California;

(3) pay for a law practice in accordance with Rulerule 1.17; and

(4) refer clients to another lawyer or a nonlawyer professional pursuant to an

agreementarrangement not otherwise prohibited under these Rules or the

State Bar Act that provides for the other person* to refer clients or

customers to the lawyer, if:

(i) the reciprocal referral agreementarrangement is not exclusive,; and

(ii) the client is informed of the existence and nature of the

agreement.arrangement;

(5) offer or give a gift or gratuity to a person* having made a recommendation

resulting in the employment of the lawyer or the lawyer’s law firm,*

provided that the gift or gratuity was not offered or given in consideration

of any promise, agreement, or understanding that such a gift or gratuity

would be forthcoming or that referrals would be made or encouraged in

the future.

address of at least one lawyer or law firm* responsible for its content.

Comment

[1] To assist the public in learning about and obtaining legal services, lawyers

should be allowed to make known their services not only through reputation but also

through organized information campaigns in the form of advertising. Advertising

involves an active quest for clients, contrary to the tradition that a lawyer should not

seek clientele. However, the public’s need to know about legal services can be fulfilled

in part through advertising. This need is particularly acute in the case of persons of

moderate means who have not made extensive use of legal services. The interest in

expanding public information about legal services ought to prevail over considerations

of tradition. Nevertheless, advertising by lawyers entails the risk of practices that are

misleading or overreaching.

[21] This Rulerule permits public dissemination of accurate information concerning a

lawyer and the lawyer’s services, including for example, the lawyer’s name or firm*

name, address, email address, website, and telephone numberthe lawyer’s contact

information; the kinds of services the lawyer will undertake; the basis on which the

lawyer’s fees are determined, including prices for specific services and payment and

credit arrangements; a lawyer’s foreign language ability; names of references and, with

their consent, names of clients regularly represented; and other information that might

invite the attention of those seeking legal assistance. This rule, however, prohibits the

dissemination of false or misleading information, for example, an advertisement that

sets forth a specific fee or range of fees for a particular service where, in fact, the lawyer

charges or intends to charge a greater fee than that stated in the advertisement.

[3] Questions of effectiveness and taste in advertising are matters of speculation

and subjective judgment. Some jurisdictions have had extensive prohibitions against

television and other forms of advertising, against advertising going beyond specified

facts about a lawyer, or against “undignified” advertising. Television, the Internet, and

other forms of electronic communication are now among the most powerful media for

getting information to the public, particularly persons of low and moderate income;

prohibiting television, Internet, and other forms of electronic advertising, therefore,

would impede the flow of information about legal services to many sectors of the public.

Limiting the information that may be advertised has a similar effect and assumes that

the bar can accurately forecast the kind of information that the public would regard as

relevant. But see Rule 7.3(a) for the prohibition against a solicitation through a real-time

electronic exchange initiated by the lawyer.

[42] Neither this Rulerule nor Rulerule 7.3 prohibits communications authorized by

law, such as notice to members of a class incourt-approved class action

litigationnotices.

Paying Others to Recommend a Lawyer

[3] Paragraph (b)(1) permits a lawyer to compensate employees, agents, and vendors

who are engaged to provide marketing or client-development services, such as publicists,

public-relations personnel, business-development staff, and website designers. See rule

5.3 for the duties of lawyers and law firms* with respect to supervising the conduct of

nonlawyers who prepare marketing materials and provide client development services.

[5] Except as permitted under paragraphs (b)(1)-(b)(4), lawyers are not permitted to

pay others for recommending the lawyer’s services or for channeling professional work

in a manner that violates Rule 7.3. A communication contains a recommendation if it

endorses or vouches for a lawyer’s credentials, abilities, competence, character, or

other professional qualities. Paragraph (b)(1), however, allows a lawyer to pay for

advertising and communications permitted by this Rule, including the costs of print

directory listings, on-line directory listings, newspaper ads, television and radio airtime,

domain-name registrations, sponsorship fees, Internet-based advertisements, and

group advertising. A lawyer may compensate employees, agents and vendors who are

engaged to provide marketing or client development services, such as publicists, public-

relations personnel, business-development staff and website designers. Moreover, a

lawyer may pay others for generating client leads, such as Internet-based client leads,

as long as the lead generator does not recommend the lawyer, any payment to the lead

generator is consistent with Rules 1.5(e) (division of fees) and 5.4 (professional

independence of the lawyer), and the lead generator’s communications are consistent

with Rule 7.1 (communications concerning a lawyer’s services). To comply with Rule

7.1, a lawyer must not pay a lead generator that states, implies, or creates a reasonable

impression that it is recommending the lawyer, is making the referral without payment

from the lawyer, or has analyzed a person’s legal problems when determining which

lawyer should receive the referral. See also Rule 5.3 (duties of lawyers and law firms

with respect to the conduct of nonlawyers); Rule 8.4(a) (duty to avoid violating the Rules

through the acts of another).

[6] A lawyer may pay the usual charges of a legal service plan or a not-for-profit or

qualified lawyer referral service. A legal service plan is a prepaid or group legal service

plan or a similar delivery system that assists people who seek to secure legal

representation. A lawyer referral service, on the other hand, is any organization that

holds itself out to the public as a lawyer referral service. Such referral services are

understood by the public to be consumer-oriented organizations that provide unbiased

referrals to lawyers with appropriate experience in the subject matter of the

representation and afford other client protections, such as complaint procedures or

malpractice insurance requirements. Consequently, this Rule only permits a lawyer to

pay the usual charges of a not-for-profit or qualified lawyer referral service. A qualified

lawyer referral service is one that is approved by an appropriate regulatory authority as

affording adequate protections for the public. See, e.g., the American Bar Association’s

Model Supreme Court Rules Governing Lawyer Referral Services and Model Lawyer

Referral and Information Service Quality Assurance Act (requiring that organizations

that are identified as lawyer referral services (i) permit the participation of all lawyers

who are licensed and eligible to practice in the jurisdiction and who meet reasonable

objective eligibility requirements as may be established by the referral service for the

protection of the public; (ii) require each participating lawyer to carry reasonably

adequate malpractice insurance; (iii) act reasonably to assess client satisfaction and

address client complaints; and (iv) do not make referrals to lawyers who own, operate or

are employed by the referral service.)

[7] A lawyer who accepts assignments or referrals from a legal service plan or

referrals from a lawyer referral service must act reasonably to assure that the activities

of the plan or service are compatible with the lawyer’s professional obligations. See

Rule 5.3. Legal service plans and lawyer referral services may communicate with the

public, but such communication must be in conformity with these Rules. Thus,

advertising must not be false or misleading, as would be the case if the communications

of a group advertising program or a group legal services plan would mislead the public

to think that it was a lawyer referral service sponsored by a state agency or bar

association. Nor could the lawyer allow in-person, telephonic, or real-time contacts that

would violate Rule 7.3.

[84] A lawyer also may agree to refer clientsParagraph (b)(4) permits a lawyer to make

referrals to another lawyer or a nonlawyer professional, in return for the undertaking of

that person* to refer clients or customers to the lawyer. Such reciprocal referral

arrangements must not interfere with the lawyer’s professional judgment as to making

referrals or as to providing substantive legal services. (See Rulesrules 2.1 and 5.4(c).

Except as provided in Rule 1.5(e), a lawyer who receives referrals from a lawyer or

nonlawyer professional must not pay anything solely for the referral, but the lawyer does

not violate paragraph (b) of this Rule by agreeing to refer clients to the other lawyer or

nonlawyer professional, so long as the reciprocal referral agreement is not exclusive

and the client is informed of the referral agreement.) Conflicts of interest created by

such arrangements made pursuant to paragraph (b)(4) are governed by Rulerule 1.7.

Reciprocal referral agreements should not be of indefinite duration and should be

reviewed periodically to determine whether they comply with these Rules. This Rule

does not restrict referrals or divisions of revenues or net income among lawyers within

firms comprised of multiple entities. A division of fees between or among lawyers not in

the same law firm* is governed by rule 1.5.1.