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Rules of Professional Conduct

Free speech and advertising, RPC 1-400

Posted by Anthony Radogna | May 12, 2017 | 0 Comments

States may not completely ban (some certain state restrictions are permitted) lawyers from sending truthful and nondeceptive letters to potential clients. (see Shapero v. Kentucky Bar Ass'n (1988)

Remember that mail advertising poses less of a risk than face to face contact. You might be asking yourself, less of a risk of what? The risk that is contemplated is one of an invasion of privacy, or one of undue influence. The reasoning behind this is that lay people (potential clients) are not under any significant pressure when receiving a mailing advertisement, unlike face to face solicitation, where the lay person may feel very pressured.

In fact, Bolder v. Youngs Drug Products Corp discusses receiving mail/advertisement, and then easily being able to dump that mail in the trash. That receiving mail, and then having to dispose of that mail, is an acceptable burden that we as a society can accept in order to continue to provide constitutional protections to those who wish to advertise (free speech).

What you need to remember:

Rules of Professional Conduct 1-400 discusses the differences in a communication and a solicitation. This rule also tells us exactly what cannot go into any communication/solicitation, such as false or misleading information.

 For further information see the following:

Shapero v. Kentucky Bar Ass'n (1988) 486 US 466, 473-474, 108 S.Ct. 1916, 1921-1922

Cal. State Bar Form.Opn. 1988-105

Bolger v. Youngs Drug Products Corp. (1983) 463 US 60, 72, 103 S.Ct. 2875, 2883

Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985) 471 US 626, 641-642, 105 S.Ct 2265, 2276-2277

About the Author

Anthony Radogna

Anthony Radogna worked for over 5 years as an Investigator for the State Bar of California's Office of Chief Trial Counsel ("OCTC"), investigating a wide-range of ethical complaints brought against attorneys. In addition, he served on specialized task force teams and has experience investigating the unauthorized practice of law (Business and Professions code section 6126.3), abandoned law practices, disbarred and resigned attorneys, and other activities such as drug abuse and physical or mental illness (Business and Professions code section 6180 and 6190). He is admitted to practice law in California and the United States Central District Court. Anthony now provides advice, consultations, and representation to California attorneys involved in State Bar proceedings, from resolving complaints, to defense in State Bar trials and appeals. Anthony graduated in 2001 with a Bachelor of Science in Business from Cal Poly Pomona. He received his Juris Doctorate from La Verne Law School and became a licensed attorney in 2008. He also holds a LL.M in Criminal Law and Practice from Southwestern Law School. In addition, he currently is an Associate Professor at Irvine University Law School, where he proudly teaches Professional Responsibility and Criminal Procedure classes to law students. He also serves as a committee member on two separate school Committees, Academic and Admissions. Anthony is a member of the Orange County Bar Association. He is also currently serving as a liaison to the California State Bar for the Lawyers Assistance Program (LAP). LAP helps lawyers and State Bar applicants who are grappling with stress, anxiety, depression, substance use or concerns about their career. Anthony is a "NITA Advocate" (National Institute of Trial Advocacy). This advocate designation is reserved for the individuals who have completed extensive training and learned a wide range of advocacy skills through the NITA program.

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