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Rules of Professional Conduct

Free speech and advertising, California Rules of Professional Conduct 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 Californias 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...

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