Can a California lawyer send an investigator to interview accident victims and witnesses when the lawyer does not yet represent any client in the matter?
State Bar of California COPRAC Formal Opinion 1995-144: Clientless Investigations of an Accident and Solicitation under Rule 1-400
Short answer: The opinion concluded that a lawyer who hires an investigator to interview accident victims and witnesses without yet representing any client takes on substantial risk under former Rule 1-400(C). If the investigator, acting with the lawyer's express or implicit authority, transmits any message about the lawyer's availability for professional employment, that communication is attributable to the lawyer; if the communication is in person or by telephone and a significant motive is pecuniary gain, it is a solicitation that, absent constitutional protection, violates former Rule 1-400(C) and Business and Professions Code section 6152, subdivisions (a)(1) and (a)(2).
Currency note
This opinion was issued in 1995, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former Rules 1-100 and 1-400, together with Business and Professions Code section 6152. The current solicitation framework is in Rule 7.3 (with related provisions in Rules 7.1 and 7.2). Subsequent rule amendments and later opinions may have changed parts of the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule reference.
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 opinion analyzed the situation in which a lawyer who does not yet represent anyone in a matter related to an accident hires an investigator to interview the accident's victims and witnesses. The committee concluded that any such contact is inherently suspect because victims are likely to be more susceptible to undue influence, and any victim, plus any witness with possible liability or claims, is a potential client and therefore a potential target of prohibited solicitation.
Any message the investigator conveys to such a person concerning the lawyer's availability for professional employment is a "communication" under former Rule 1-400(A). If the message is delivered in person or by telephone and a significant motive is pecuniary gain, it is a "solicitation" under former Rule 1-400(B), even if the investigator does no more than identify the lawyer. The committee reasoned that the clientless posture itself gives rise to a strong inference of the required pecuniary motive.
The committee opined that even if a particular solicitation was constitutionally protected (citing Edenfield v. Fane as leaving the constitutional contours unsettled), the second tier of former Rule 1-400 regulating all communications still applies. The investigator must, among other things, indicate that the communication is a communication or solicitation, avoid intrusion, coercion, threats, or harassment, and avoid untrue or misleading content. Any communication delivered at the scene of an accident or to someone the lawyer reasonably should know is in a state preventing reasonable judgment about retaining counsel is presumed to violate the rule.
The opinion further concluded that a later decision to decline the representation does not cure a prior Rule 1-400 violation, and that a prohibited solicitation can expose both the lawyer and the investigator to misdemeanor liability under Business and Professions Code section 6152, subdivisions (a)(1) and (a)(2).
Common questions
Q: Does it matter that the investigator only says the lawyer's name?
A: Per the opinion, no. Even an investigator who merely identifies the lawyer can be found to have made a solicitation, because the circumstances of a clientless investigation give rise to a strong inference of the required pecuniary motive.
Q: Are clientless investigations ever permissible?
A: Per the opinion, the committee envisioned only "the rarest of circumstances," for example a lawyer in a narrow specialty or in a sparsely served geographic area who reasonably expects independent client inquiries and prepares to respond by promptly investigating physical evidence and interviewing witnesses.
Q: What if the lawyer ultimately decides not to take the case?
A: Per the opinion, declining representation later does not abrogate a former Rule 1-400 violation that already occurred. The focus is on the message conveyed at the time of the contact.
Q: What constitutional defense did the committee acknowledge?
A: Per the opinion, a solicitation can fall outside former Rule 1-400(C) when it is protected by the United States or California Constitutions. The committee discussed Ohralik v. Ohio State Bar Assn. and Edenfield v. Fane, noting that the State Bar Court in Scapa and Brown had concluded the ban on in-person lawyer solicitations remained constitutional.
Background and rules framework
The opinion interprets former California Rule 1-400 (advertising and solicitation), together with Business and Professions Code section 6152(a)(1) and (a)(2) (criminal prohibitions on solicitation of clients on behalf of attorneys). Former Rule 1-400(A) defined "communication" as any message or offer concerning a lawyer's availability for professional employment; former Rule 1-400(B) defined "solicitation" as a communication in which a significant motive was pecuniary gain that was delivered in person or by telephone, or directed by any means to a person known to be represented by counsel; former Rule 1-400(C) prohibited such solicitations subject to constitutional limits; and former Rule 1-400(D) and (E) imposed content and manner requirements on any communication. The substance of these former rules is now in California Rules 7.1 through 7.3 of the current Rules of Professional Conduct, but the opinion's analysis is rooted in the former framework.
Citations and references
Rules of Professional Conduct (former, in effect at time of opinion):
- Former California Rule 1-100
- Former California Rule 1-400, particularly 1-400(A), (B), (C), (D)(1)-(D)(5), and 1-400(E) stds. 3 and 4
Statutes:
- California Business and Professions Code section 6152, subdivisions (a)(1) and (a)(2)
Cases:
- Ohralik v. Ohio State Bar Assn. (1978) 436 U.S. 447, blanket prohibition of in-person lawyer solicitations
- Edenfield v. Fane (1993) 507 U.S. 761, striking down a similar prohibition against in-person solicitations by accountants
- In the Matter of Scapa and Brown (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 635, post-Edenfield analysis concluding the in-person solicitation ban remained constitutional
See also
- CA COPRAC Op. 2004-166: Mass Disaster Victims Solicitation in Chat Rooms
- CA COPRAC Op. 1995-142: Direct-Mail Marketing of Legal Services
- CA COPRAC Op. 2001-155: Law Firm Internet Website Advertising
Source
- Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
- Original HTML: https://www.calbar.org/ethics/Opinions/1995-144.htm
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 1995-144
ISSUE:
Is it a violation of the California Rules of Professional Conduct for a lawyer to send an investigator to interview witnesses to an accident even though the lawyer at the time does not represent any client in a matter relating to the accident?
DIGEST:
Instigating such "clientless" investigations is fraught with risk that the investigation will involve a violation of rule 1-400(C) of the California Rules of Professional Conduct. If, in the course of an in-person or telephonic interview with an accident victim or a witness who may have legal liability or claims related to the accident, the investigator, with the lawyer's express or implicit authorization, refers a potential client to the lawyer or conveys any other form of message concerning the lawyer's availability for professional employment, the lawyer will be responsible for the investigator's "solicitation". In such case, unless the solicitation is protected from abridgment under the United States Constitution or the California Constitution, the lawyer who hired the investigator will herself be in violation of rule 1-400(C) of the California Rules of Professional Conduct and Business and Professions Code section 6152, subdivisions (a)(1) and (a)(2).
AUTHORITIES INTERPRETED:
Rule 1-400 of the Rules of Professional Conduct of the State Bar of California.
Business and Professions Code section 6152, subdivisions (a)(1) and (a)(2).
DISCUSSION
Rule 1-400(A) of the California Rules of Professional Conduct defines a "communication" as "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 . . . ."
Rule 1-400(B) defines a "solicitation" as:
. . . any communication:
(1) Concerning the availability for professional employment of a member or a law firm in which a significant motive is pecuniary gain; and
(2) Which is;
(a) delivered in person or by telephone, or
(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.
When a lawyer who is not representing any client in a matter related to a particular accident hires someone to perform an investigation of that accident, contact by the investigator with the victims is inherently suspect. Victims are likely to be greatly affected by the incident and, thus, more susceptible to being influenced unduly by the solicitations of the lawyer's investigator. Any victim of an accident, including those emotionally stricken though not physically injured, might be a potential client. Witnesses who may have legal liability or claims related to the accident are also potential clients and therefore potential targets of prohibited solicitations.
Any message or offer that the investigator might convey to any such victim concerning the lawyer's availability for professional employment will be a "communication" under rule 1-400. Any such communication that the investigator delivers in-person or by telephone to the potential client would be a "solicitation" as long as a "significant motive" of the communication is pecuniary gain. (Rule 1-400(B).) Presence of such a motive may be inferred from the circumstances. For example, in the course of an interview with an accident victim if an investigator hired by a plaintiffs personal injury attorney no more than simply identifies the lawyer for whom she works (cf. rule 1-400(A)(1)), a "solicitation" may be found to have occurred, as the circumstances of the communication, a clientless investigation, give rise to a strong inference that the predicate "significant motive of pecuniary gain" is present. (Rule 1-400(B).)
Solicitations, whether made by or on behalf of a lawyer, are generally prohibited under rule 1-400(C), but a solicitation may fall outside the general proscription of rule 1-400(C) if it is protected from abridgment under the United States Constitution or the California Constitution. The United States Supreme Court has upheld a blanket prohibition of in-person lawyer solicitations (Ohralik v. Ohio State Bar Assn. (1978) 436 U.S. 447 [98 S.Ct. 1912]), but its recent opinion in Edenfield v. Fane (1993) U.S. [113 S.Ct. 1792] (striking down a similar prohibition against in-person solicitations by or on behalf of accountants) leaves it unclear how far it will apply the holding in Ohralik beyond the particular facts of that case. (But see In the Matter of Scapa and Brown (Review Dept. 1993) 2 Cal. State Bar. Ct. Rptr. 635, 652, in which the State Bar Court analyzed both cases and concluded that the ban on in-person lawyer solicitations is still constitutional.)
Even if, in certain situations, a "solicitation" might not be banned outright without violating the First Amendment, the lawyer should be mindful that rule 1-400 imposes a second tier of regulation, that applicable to any "communication", with which the attorney must ensure that her investigator complies. In many circumstances, the investigator's communication made on behalf of the lawyer will either violate rule 1-400(D) per se or be presumed to violate rule 1-400. For example, the lawyer must always make certain that the investigator transmitting any communication "indicate clearly, expressly, or by context, that it is a communication or solicitation, as the case may be . . ." (rule 1-400(D)(4)), and that the investigator avoid communicating in a manner that ". . . involves intrusion, coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct." (Rule 1-400(D)(5).) The communication may not contain any untrue statement or be presented in a manner which is confusing or misleading, nor may the communication omit to state any fact necessary to make the statements made, in light of circumstances under which they are made, not misleading. (Rules 1-400(D)(1), (D)(2) and (D)(3).) Moreover, any communication delivered by the investigator at the scene of an accident or otherwise to a potential client whom the lawyer should reasonably know to be 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 is presumed to violate rule 1-400. (Rule 1-400(E), stds. 3 and 4.)
The focus of rule 1-400 is on the message conveyed by the lawyer or, in this case, by the investigator acting with the express or implicit authority of the lawyer. If there has been a violation of rule 1-400 in the course of a clientless investigation, the fact that the lawyer later refrains from representing the individual to whom the communication was directed will not abrogate the ethical violation.
If the investigator with the explicit or implicit authorization of the lawyer has engaged in a prohibited solicitation on behalf of the lawyer, both the lawyer and the investigator may also be guilty of misdemeanors under Business and Professions Code section 6152, subdivisions (a)(1) and (a)(2).
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding on the courts, the State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities or any member of the State Bar.