California Rules of Professional Conduct Rule 1-400 is named “Advertising and Solicitation”.
I will answer the question above; however, I feel the need to explain some things prior to doing that.
As lawyers, we are very aware that sometimes in penal codes, laws, or administrative codes, the plain English meaning of a word might not be the best way to interpret that word within the body of that particular code or law.
This rule is a perfect example of that. I am not saying forget what you know about the words communication and/or solicitation, but I find that even smart lawyers can find this rule a little confusing.
Go ahead and read the full rule first and then come back to my article if you don't believe me 😊 click on this link which brings you to the rule under my resources page, (https://www.statebardefenseattorney.com/california-rules-of-professional-conduct-rule-1-400)
Now that your back, lets discuss.
Not only can the words communication and solicitation lead us astray a little, but the name of this rule furthers the confusion as well.
The rule is named “Advertising and Solicitation”.
The fact that it is named that makes it seem like the rule will address two distinct and separate things, those being advertising and solicitation.
**However, the correct way to understand this rule is to be aware that a solicitation is a form of a communication, and both can be an advertisement.
Per rule 1-400, a communication is “…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…”.
And per rule 1-400, a solicitation is “…any communication…” that etc. etc.,
So, as I stated above, a solicitation is a form of a communication, and your communication to any former, present, or prospective client will be construed as an advertisement. (There is a huge difference between a solicitation and communication per this rule. I will discuss that in a different blog, but for now just understand that you should not be engaged in solicitation, as defined by 1-400.)
Why am I going into this? If the point of this particular blog is to answer the question on whether you have a duty to keep advertisements…..then I think it is important for you to know what an advertisement first is.
The rule itself gives us some examples; stationery, letterhead, business cards, use of firm name, and the like. However, you can see from the basic definition of a communication above, that an advertisement is pretty much everything and anything that involves your law practice, or better stated, that involves you trying to gain a client.
1-400(a)(3) states that a communication is any “…advertisement (regardless of medium) of such member or law firm directed to the general public…”. It should be pretty obvious that the State Bar would likely construe anything and everything a communication, and hence an advertisement.
OK, now let's discuss what you really came here for. Do you have a duty to keep all your advertisements? And if the answer is yes, then for how long?
The easy and obvious answer here is yes. Per California Rules of Professional Conduct 1-400(F), a “member shall retain for two years a true and correct copy or recording of any communication made by written or electronic media”. (Business and Professions Code section 6159.1 also requires you to keep a true and correct copy of any advertisement as well)
It sounds a little overwhelming right? Are you really expected to keep all advertisements for 2 years? Yes, you are.
I investigated a small handful these while working as an Investigator at the California State Bar and have defended a handful of these as State Bar defense counsel as well.
In my experience, a rule 1-400 violation investigation is usually started anonymously (someone that has been on your website and feels there is something misleading etc.), or by a prospective client that is mad that they received an advertisement from you.
Whatever the case may be, at the end of the letter that you received from the State Bar, they will not only ask you to respond to the allegations, but will likely ask you to produce legible copies of the advertisement in question.
1-400(F) states in part, “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.”
Let's look at a few more examples of communications that you would need to keep for 2 years:
1) If you put ads out in newspapers, legal directories or yellow book.
2) Brochures or anything else that can be distributed.
3) If your advertisement is not done by print, but instead electronic medium such as radio, video, television etc., then keep a recording. A script of the text is also preferred.
4) Every version of business cards you have used.
5) Any signs you have made.
6) Has your letterhead changed? Have you added a partner..changed address etc.? Keep them all.
7) If you engage in mass mailing, then every version of every letter sent out should 100% be retained.
8) Your website of course is a communication. Therefore you must find a way to archive older versions within the 2-year mark.
9) Social media. This is obviously very important. Any posting you have made, any blog, anything at all that is a “communication” should be kept. Not a bad thing to do on a regular basis is to print screen shots of your posts etc.
Remember that 1-400 investigations can be started by any allegation made against you in regard to any of your communications, as defined by this rule. Maybe the allegation is that your website or blog is “misleading”, or maybe someone is claiming your business card was personally given to a rear end accident victim (possible solicitation), but just remember that not only will I have to defend the specific allegation made against you, but I will need to furnish the State Bar a true a correct copy of the advertisement in question as well, if they demand it.