Can a lawyer send clients pamphlets urging them to review their wills and recommend an in-office specialist?
State Bar of California Formal Opinion 1967-10: Will Pamphlets and Referring Clients to Specialists
Short answer: The committee concluded that State Bar pamphlets could be placed in reception rooms and sent only to selected clients with circumspection, that a lawyer could tell an existing client that another attorney in the office specializes in wills, and that a lawyer could give nonclient friends will information only in response to inquiries, not through unsolicited circulars.
Currency note
This opinion was issued in 1967, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former California Rules 1 and 2, the predecessors to the current advertising and solicitation rules (current Rules 7.1-7.3; Model Rules 7.1-7.3). It also predates Bates v. State Bar of Arizona (1977) and later decisions on lawyer solicitation; subsequent rule amendments and decisions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
The committee addressed three practices: forwarding State Bar pamphlets on wills to clients with a covering letter suggesting they review their own estate situation; advising a client that an attorney "in the office" specializes in wills and probate; and giving nonclient friends information about wills or about an attorney's specialty. Former Rule 2 and former ABA Canon 27 condemned advertising and solicitation, with limited exceptions the committee found inapplicable.
On the first question, the committee treated the State Bar's educational pamphlets like the brochures used in bar-sponsored legal "check-up" programs that other bars had approved. Drawing on ABA opinions, it concluded such pamphlets could be placed in lawyers' reception rooms and circulated only to certain clients, with circumspection and dignity, and that they should not be sent to all of a lawyer's clients. The committee endorsed the ABA view that, where a lawyer has no reason to believe he has been supplanted, periodic notices to a client for whom he drew a will, suggesting the client re-examine it, are proper, but that distributing circulars (such as a pamphlet urging clients to submit insurance policies for review) is improper solicitation even when sent to clients. It cited Drinker's view that a personal letter is in better taste than a circular and that a lawyer may not write to clients or friends generally about the advantages of will-making.
On the second question, the committee opined that an attorney may tell a client that another attorney in the office specializes in wills and trusts, provided the client has consulted the attorney on such matters and the attorney has not solicited new business, whether or not the recommending attorney shares the fee. On the third, it concluded that a lawyer may not, without request, give nonclient friends information about wills, but may do so in response to inquiries and may give information about an attorney's specialty; in certain circumstances the nonclient may need to be asked whether he is otherwise represented, to avoid encroaching on another lawyer. The committee distinguished this from the propriety of accepting speaking engagements, writing articles, or appearing on panel shows involving legal issues.
Common questions
Q: Could a lawyer mail will pamphlets to clients?
A: Only with limits. The committee concluded the State Bar pamphlets could be placed in reception rooms and circulated to certain clients with circumspection, but should not be sent to all clients, and unsolicited circulars urging legal work were improper solicitation.
Q: Could a lawyer recommend an in-office specialist to a client?
A: Yes. The committee opined that a lawyer may advise a client that another attorney in the office specializes in wills and trusts, provided the client consulted the lawyer on such matters and the lawyer did not solicit new business, whether or not the fee is shared.
Q: Could a lawyer give nonclient friends information about wills?
A: Not unsolicited. The committee concluded a lawyer may not, without request, give nonclient friends information about wills, but may respond to inquiries and may give information about an attorney's specialty, asking in some circumstances whether the person is already represented.
Q: Was sending periodic will-review reminders to a former will client proper?
A: Yes. The committee endorsed the ABA view that, where the lawyer has no reason to believe he has been supplanted, periodic notices suggesting the client re-examine the will were proper, ideally as a personal letter rather than a circular.
Background and rules framework
The opinion interprets former California Rule of Professional Conduct 2 (advertising and solicitation) and former Rule 1 (commending the ABA Canons), together with former ABA Canon 27 (advertising) and Canon 7 (encroaching on another lawyer). It relies heavily on ABA Committee opinions and Drinker's Legal Ethics (1953). The advertising and solicitation restrictions are now embodied, in altered form, in California Rules 7.1 through 7.3 and Model Rules 7.1 through 7.3.
Citations and references
Rules of Professional Conduct:
- Former California Rules 1 and 2 (advertising and solicitation); former ABA Canons 7, 27, and 40
- Current analog: Model Rules 7.1-7.3 / California Rules 7.1-7.3
Cases:
- Jacksonville Bar Association v. Wilson (1962) 102 So.2d 295
Other opinions cited:
- ABA Committee on Professional Ethics Opinions Nos. 179 (1938), 191 (1939), 210 (1941), 213 (1941), 227 (1941), 239 (1941), 307 (1962), and informal decisions Nos. C-171, 571A (1962), and 974 (1966)
- Illinois State Bar Ethics Committee Opinion No. 201
- Los Angeles County Bar Association Committee on Legal Ethics Opinion No. 1965-10
Other authorities:
- Drinker, Henry S., Legal Ethics (1953) pp. 190-191, 254, 260-263.
See also
- ABA Formal Op. 501: Solicitation Under Rule 7.3
- CA Ethics Op. 1995-142: Direct-Mail Marketing of Legal Services
- CA Ethics Op. 1967-7: Out-of-Town Telephone Directory Listings
Source
- Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
- Original opinion: https://www.calbar.org/ethics/Opinions/1967-10.htm
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Ethics Opinions - FORMAL OPINION NO. 1967-10
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Forwarding information (e.g., State Bar pamphlets) to clients generally regarding wills, with a covering letter suggesting that the client should check his own will and estate situation to determine if a will or modified will is needed;
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Advising a client that an attorney "in the office" is doing work only in the will and probate field as a specialist; and
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Giving nonclient friends information regarding wills and/or information regarding an attorney's specialty in this field.
Rule 2 of the Rules of Professional Conduct of the State Bar and [former] canon 27 of the [former] Canons of Ethics of the American Bar Association (commended to the California Bar by rule 1, Rules Prof. Conduct) condemn advertising and solicitation with certain limited exceptions, which exceptions are not applicable to the questions presented.
In Question No. 1, the inquiring attorney, it is assumed, has reference to the State Bar of California pamphlet series, whereunder information regarding various selected legal subjects of interest to the general public is distributed. These pamphlets are intended to be educational but they also, it is to be assumed, have advertising value to the legal profession generally. The State Bar sponsors the series and prepares the format and copy. The pamphlet bears the seal of the State Bar, its name in capital letters, and its San Francisco office address. The series is advertised in a newsletter sent to California lawyers by the State Bar. The advertisements to lawyers state the following with respect to these pamphlets: "Place these in your reception room."
This program is not to be confused with state bar sponsored, so-called legal "check-up" programs (adopted in several other states but not in California) which are advertised directly to the public at large. Complimentary brochures and reprints of these are supplied to lawyers requesting same, without charge. Admittedly, this type of program is institutional advertising, but it has been approved by ethics committees of the respective bars involved. They have ruled generally that it is not improper under [former] canon 27 of the Canons of Ethics of the American Bar Association to have the brochures, reprints and pamphlets in the offices of the lawyers for persons to read and take, but that it is improper to send such literature to persons who are not regular clients and that the individual lawyer's name should not appear thereon. (See Illinois State Bar Ethics Committee, Opn. No. 201; ABA Committee on Prof. Ethics, Opns. Nos. 179 (1938), 191 (1939), 227 (1941) and 307 (1969); Jacksonville Bar Association v. Wilson (1962) 102 So.2d 295.) Certain restrictions have, however, been placed on the form of the general advertising and it has also been ruled that such programs should be sponsored only by state or county bar associations or by an official committee of the American Bar Association.
Further, with respect to this legal "check-up" program, it has been ruled that the literature may not be sent to all the clients of an attorney, and that great care should be exercised by the lawyer in selecting the persons "with respect to whom he feels charged with the continual supervision of such clients' legal affairs." (ABA Committee on Prof. Ethics, informal decision No. C-171.) "Such communications stand on the same footing as that of advising regular clients of new statutes, court decisions, and administrative rulings which may affect the client's interest." (ABA Committee on Prof. Ethics, Opn. No. 213 (1941) and informal decision No. 974 (1966).)
It is the opinion of this Committee that the State Bar approved pamphlets referred to are in the same category as the pamphlets used in the legal "check-up" programs and that they should be circulated only to certain clients, with circumspection and dignity. In addition, they may be placed in reception rooms of lawyers. Such conduct does no violence to rule 2 of the Rules of Professional Conduct of the State Bar. (L.A. Co. Bar Assn. Committee on Legal Ethics, Opn. No. 1965-10.)
With respect to contacting clients generally respecting their wills, the ethical rule is succinctly stated in American Bar Association Committee on Professional Ethics and Grievances, Opinion No. 210 (1941), in which it was observed:
"Many events transpire between the date of making the Will and the death of the testator. The legal significance of such occurrences are often of serious significance of which the testator may not be aware, so the importance of calling the attention of the testator thereto is manifest."
"It is our opinion that where the lawyer has no reason to believe that he has been supplanted by another lawyer it is not only his right but it might even be his duty to advise his client of any change of fact or of law which might defeat the client's testamentary purpose as expressed in the Will."
"Periodic notices might be sent to the client for whom a lawyer has drawn a Will suggesting that it might be wise for the client to re-examine his Will to determine whether or not there has been any change in his situation requiring a modification of his Will."
In American Bar Association Committee on Professional Ethics and Grievances Opinion No. 239 (1941) it was ruled that the distribution by a lawyer to his clients of a pamphlet recommending that they submit their insurance policies to him for advice violates [former] canon 27 of the Canons of Ethics of the American Bar Association on the ground that it was solicitation of professional employment by circulars, and that this would be so regardless of the fact that the distributees were clients. In that opinion the pamphlet involved was prepared by a corporation acting as an insurance analyst.
Drinker has discussed the above question at page 254 in Legal Ethics (1953) and while he approves the sending of pertinent memoranda to clients, he states that it should be done in a way that does not smack of advertising. In that connection he suggests that a personal letter to the client is in better taste than a circular. He also states that a lawyer may not send to a client a copy of the Revenue Laws or a reprint of a legal article that has his name stamped on it, and that a lawyer may not write to clients, generally, nor to friends, communicating to them the necessity and advantages of will-making.
In reply to Question No. 2, it is the opinion of this Committee that an attorney may advise a client that another attorney in the office specializes in wills and trusts, provided the client has consulted the attorney with respect to such matters and that the attorney has not undertaken to solicit new business. This is true whether the other attorney is a member of his firm or whether or not the recommending attorney is to share in the fee.
Drinker has stated with reference to the recommended lawyer:
"A lawyer may properly accept cases recommended to him in good faith by his brother, or by an accounting firm; or cases referred to him on request of client, by the lawyer's brother, there being no suggestion of a splitting of fees, or accept clients recommended bona fide to him by the secretary of deceased lawyer, now his secretary, or by a doctor friend, or a union delegate." (Legal Ethics, supra, at pp. 260-261.)
But where a former associate or partner who has accepted a public office made it a practice of referring clients to his former firm, it was suggested that this might be considered touting and thus improper.
In reply to Question No. 3, it is the opinion of this Committee that a lawyer may not, without request, give nonclient friends information regarding wills but may, of course, do so in response to inquiries, and may give information regarding an attorney's specialty. In certain circumstances it might become necessary that the nonclient be questioned as to whether or not he is otherwise represented by counsel, in order not to encroach upon another lawyer. (ABA Canons of Prof. Ethics, [former] canon 7; Drinker, Legal Ethics, supra, at pp. 190-191.) A lawyer may not seek from persons who are not his clients the opportunity to perform such services or to make such recommendations. He may do no more in acquiring clients in this area of the law than he may do as to other legal matters. (ABA Committee on Prof. Ethics, opn. No. 307 (1962).)
In American Bar Association Committee on Professional Ethics, informal opinion No. 571A (1962), where an attorney proposed to use the following on the bottom of the face of his envelopes, for mailing in general: "Have you made your Will? See your lawyer today!! . . .," it was stated that, where the lawyer is acting individually, notwithstanding he may feel that he is performing a public service, the invitation to have a will drawn or to see a lawyer is at least an indirect form of advertising and of soliciting business for himself, in violation of [former] canon 7. This rule certainly is broad enough to encompass the conduct of an attorney who undertakes aggressively, and without prior solicitation by the client, to recommend another attorney as a specialist.
The admonition immediately above should not be confused with the propriety of an attorney in accepting speaking commitments, in writing articles, or in appearing on panel shows involving legal issues, nor with the giving of legal opinions of a restricted nature, all of which involve mass groups. (ABA [former] Canons of Prof. Ethics, [former] canon 40; State Bar Committee on Prof. Ethics, Opn. No. 1965-2; and Drinker, Legal Ethics, supra, at p. 263.)