Can a California lawyer post in an Internet chat room dedicated to victims of a recent mass disaster to offer her services?

State Bar of California COPRAC Formal Opinion 2004-166: Mass Disaster Victims Chat Room Solicitation

Short answer: The opinion concludes that an attorney's communication with prospective fee-paying clients in a mass disaster victims Internet chat room is not a prohibited "solicitation" under former Rule 1-400(B) (which is bounded by an "in person or by telephone" bright-line), but it does violate former Rule 1-400(D)(5) (which bans transmittal of communications that involve intrusion), and it is a presumed violation under Standard (3) to former Rule 1-400 (which presumes improper any communication delivered to a prospective client whom the attorney knows or should reasonably know lacks the emotional or mental state to make a reasonable judgment about retaining counsel).

Currency note

This opinion was issued in 2004, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former Rule 1-400. Current Rules 7.1-7.5 (and particularly 7.3 on solicitation) now address these issues; the analysis below is rooted in the framework as it stood in 2004. Treat this page as historical context, not current guidance.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.

View original opinion

Plain-English summary

The hypothetical: Attorney, a personal injury lawyer, finds a chat room created for victims and families of a recent mass disaster. The chat room's home page states its purpose is "the provision of emotional support to victims of the recent mass disaster and their families by similarly affected persons." After monitoring for a while, Attorney introduces herself as a lawyer and offers to answer questions, hoping to be hired.

Is Attorney's participation a "communication" under former Rule 1-400(A)? The committee said yes. Identifying herself as an attorney and answering questions amounts to communicating her availability for professional employment. Footnote 4, drawing on Los Angeles County Bar Formal Opinion 494 and Central Hudson Gas & Elec. Corp. v. Public Service Commission (1980), noted that the regulatory reach is tempered by the phrase "concerning the availability for professional employment."

Is the communication a "solicitation" under former Rule 1-400(B)? The committee said no. While Attorney's significant motive was pecuniary gain (subdivision (B)(1)), the communication did not satisfy subdivision (B)(2): it was not "in person," and although chat room messages may travel over telephone lines, "delivered by telephone" in the rule refers to actual telephone calls, not electronic communications transmitted by telephone lines. The committee drew on its 2001-155 opinion that emphasized e-mail's static character (room for reflection, re-reading, sharing) as distinguishing it from telephonic discussion. Even though chat is in real time, the committee declined to extend the bright-line beyond its express language because doing so would undermine fair notice. The committee acknowledged that ethics committees in Florida, Michigan, Oregon, Utah, Virginia, and West Virginia have reached different conclusions under their differently-worded rules. Footnote 8 noted that the ABA had recently amended Model Rule 7.3(a) to add "real-time electronic" contact.

Is the communication regulated under other provisions of former Rule 1-400? Yes. Under former Rule 1-400(D)(5), communications "transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct" are prohibited. Citing Ohralik v. Ohio State Bar Association (1977), the committee reasoned that when there is potential for overreaching by a lawyer seeking legal employment, whether by solicitation or communication, the conduct may be banned. Under the facts, victims and family members visit the chat room for emotional support and do not expect a lawyer hoping to be retained. Footnote 10 cited 49 U.S.C. § 1136's federal prohibition on unsolicited communications to aviation-accident victims within 45 days as further support for the intrusiveness finding. Attorney's participation in this particular chat room is therefore a violation of subdivision (D)(5). Footnote 11 noted that the same conduct in a chat room dedicated to "legal rights and remedies of mass disaster victims" would not be intrusive.

Standard (3) to former Rule 1-400 presumes improper any communication delivered to a potential client whom the attorney "knows or should reasonably know is 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." The committee invoked Ohralik and the common knowledge that persons who have recently suffered a debilitating injury are often in a weakened state. Any victim or family member visiting the chat room is likely doing so for emotional support, which reasonably implies their emotional state may render them incapable of making a reasonable judgment about retaining Attorney. Attorney's communication is therefore a presumed violation under Standard (3).

The committee also noted in footnote 2 that the public nature of the chat room precludes any expectation of privacy and therefore no confidential consultation could occur; and that Business and Professions Code sections 6157 et seq. did not apply because the conduct was not a broadcast or mass-media advertisement.

Common questions

Q: Is an attorney's solicitation in a victims' chat room a 'solicitation' under former Rule 1-400(B)?

A: Per the opinion, no, because subdivision (B)(2)'s "in person or by telephone" bright-line does not extend to chat-room communications, even though they are real-time. The committee acknowledged that the rule could be amended to cover real-time electronic contact, citing the ABA's amendment of Model Rule 7.3(a).

Q: Is the communication still prohibited under former Rule 1-400?

A: Per the opinion, yes. The communication violates subdivision (D)(5) (intrusion, coercion, duress, compulsion, intimidation, threats, vexatious or harassing conduct). Citing Ohralik, the committee concluded that participation in a chat room whose stated purpose is providing emotional support to disaster victims is intrusive.

Q: Does Standard (3) apply?

A: Per the opinion, yes. Standard (3) presumes a violation when the attorney delivers communication to a potential client the attorney knows or should reasonably know is in an emotional or mental state precluding a reasonable judgment about retaining counsel. The chat room's stated purpose makes that presumption available here.

Q: Would the same conduct in a different chat room be permissible?

A: Per footnote 11, the same conduct in a chat room dedicated to the "legal rights and remedies of mass disaster victims" would not involve intrusion. The attorney's communication would still need to comply with subparagraphs (D)(1)-(4) of the rule (not false, misleading, or deceptive).

Q: Does the chat-room participant have any privacy interest the attorney must protect?

A: Per footnote 2, no. The public chat room precludes any expectation of privacy, so a confidential consultation could not occur. (The opinion contrasts this with California State Bar Formal Opinion 2003-164's analysis of radio call-in shows.)

Q: Do California's electronic advertising statutes (Bus. & Prof. Code §§ 6157-6158.7) apply?

A: Per footnote 2, no, because the conduct is not a broadcast or mass-media advertisement within the meaning of section 6157, subdivisions (c) and (d).

Background and rules framework

The opinion interprets former California Rule 1-400 (advertising and solicitation). Functionally these correspond, in current California numbering, to Rules 7.1 (communications concerning a lawyer's services), 7.2 (advertising), and 7.3 (solicitation of clients).

Citations and references

Rules of Professional Conduct (former, in effect at time of opinion):

• Former California Rule 1-400, subdivisions (A), (B), (C), (D)(1)-(4), (D)(5), and Standard (3) to subdivision (E)

Statutes:

• California Business and Professions Code sections 6157 et seq. (electronic advertising)
• 49 U.S.C. § 1136 (aviation-accident victim solicitation ban)

Cases:

• Ohralik v. Ohio State Bar Association (1977) 436 U.S. 447, overreaching with vulnerable persons
• Central Hudson Gas & Elec. Corp. v. Public Service Commission of New York (1980) 447 U.S. 557, commercial speech

Other opinions cited:

• California State Bar Formal Opinion 2001-155: law-firm website not a solicitation
• California State Bar Formal Opinion 2003-164: radio call-in show
• Los Angeles County Bar Association Formal Opinion 494: communications concerning availability for employment
• Florida Bar Ethics Opinion A-00-1 (08/15/2000): chat-room solicitation
• Utah Ethics Advisory Opinion 97-10: chat-room equivalent to in-person
• Michigan Bar Ethics Opinion RI-276 (07/11/1996)
• Illinois Bar Ethics Opinion 96-10 (05/16/1997)
• Virginia Bar Lawyer Advertising Opinion A-0110 (04/14/1998)
• West Virginia Bar Ethics Opinion 98-03 (10/16/1998)
• Arizona State Bar Association Ethics Opinion 97-04 (4/7/1997)
• District of Columbia Bar Ethics Opinion 316 (2002)

See also

• CA COPRAC Op. 2001-155: Law firm internet website advertising
• CA COPRAC Op. 2003-164: Radio call-in show attorney-client relationship

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original PDF: https://www.calbar.ca.gov/sites/default/files/portals/0/documents/ethics/Opinions/2004-166_02-0002_Opinion-PAW.pdf

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. 2004-166

ISSUE: Does an attorney's communication with a prospective fee-paying client in a mass disaster victims Internet chat room violate California Rule of Professional Conduct 1-400?

DIGEST: While an attorney's communication with a prospective fee-paying client in the mass disaster victims Internet chat room described herein is not a prohibited "solicitation" within the meaning of subdivision (B) of rule 1-400, it violates subdivision (D)(5) of rule 1-400, which bans transmittal of communications that intrude or cause duress. Attorney's communication would also be a presumed violation of Standard (3) to rule 1-400, which presumes improper any communication delivered to a prospective client whom the attorney knows may not have the requisite emotional or mental state to make a reasonable judgment about retaining counsel.

AUTHORITIES INTERPRETED: Rule 1-400 of the Rules of Professional Conduct of the State Bar of California.

STATEMENT OF FACTS

Attorney, a personal injury lawyer, searches the Internet and discovers a chat room created for victims and families of a recent mass disaster. The purpose of the chat room is prominently stated on its home web page as "the provision of emotional support to victims of the recent mass disaster and their families by similarly affected persons." After monitoring the conversation taking place in the chat room for a while, Attorney introduces herself as a lawyer and offers to answer any questions. Attorney hopes to prompt the chat room participants to hire her to perform legal services.

DISCUSSION

I. Introduction

The central issue posed by these facts is whether participation by Attorney in the mass disaster victims chat room is subject to regulation under California laws governing attorney conduct. Specifically, we must determine whether her participation violates rule 1-400 of the California Rules of Professional Conduct. Thus, we first address whether Attorney's participation constitutes a "communication" within the meaning of subdivision (A) of rule 1-400. If the participation is a "communication," we then ask whether it is also a "solicitation" under subdivision (B). As we conclude that Attorney's participation is not a "solicitation" under 1-400(B), we do not have to address whether Attorney's conduct is prohibited by subdivision (C)'s restrictions on solicitation.

However, even if Attorney's conduct is not a prohibited solicitation under subdivision (C) of the rule, see Part III, infra, we still must inquire whether her communications with the chat room participants violate subdivision (D)(5) of the rule, which prohibits a communication or solicitation that is "transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct," or standard (3) to subdivision (E) of the rule, which presumes a violation for any communication "which is delivered to a potential client whom the member knows or should reasonably know is 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."

II. "Communication"

Under rule 1-400(A), 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, including but not limited to the following: (1) Any use of firm name, trade name, fictitious name, or other professional designation of such member or law firm; or (2) Any stationery, letterhead, business card, sign, brochure, or other comparable written material describing such member, law firm, or lawyers; or (3) Any advertisement (regardless of medium) of such member or law firm directed to the general public or any substantial portion thereof; or (4) Any unsolicited correspondence from a member or law firm directed to any person or entity."

Attorney's participation in the mass disaster victims chat room is for the purpose of obtaining paying clients. By identifying herself as an attorney and answering questions, she communicates to the other participants her "availability for professional employment" within the meaning of rule 1-400(A).

III. "Solicitation"

Given that Attorney's participation in the chat room is a "communication," we next consider whether her communication is also a "solicitation" as defined in rule 1-400(B). The analysis of rule 1-400(B) is important because rule 1-400(C) prohibits the solicitation of a prospective client unless there is a prior family or professional relationship, or the solicitation is protected by the United States or California Constitutions.

Under rule 1-400(B), "a 'solicitation' means 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 the subject of a communication."

The facts assume that Attorney hopes to prompt participants whose questions she answers to engage her services on a fee-paying basis, so the first element is satisfied. The second element is satisfied if either of two tests is met: (1) a particular mode of communication, i.e., "in person or by telephone," is used; or (2) the recipient of the communication is known to be represented by counsel. As to the latter, the facts do not state that any of the other participants are represented by counsel. As a result, Attorney's communications in the chat room can be a "solicitation" within the meaning of rule 1-400(B)(2)(a) only if the communications are delivered "in person or by telephone."

Since chat room communications occur via a computer, they are not "in person." However, because Internet communications may be transmitted over telephone lines, it is arguable that chat room communications are "delivered by telephone." The problem with that argument is that rule 1-400(B) expressly refers to communications "delivered by telephone," not to communications "delivered over telephone lines." E-mail messages may also be delivered by telephone lines, but it cannot reasonably be asserted that an e-mail message to a prospective client is a prohibited solicitation under 1-400(B). As we discussed in California State Bar Formal Opn. No. 2001-155: "Although e-mail communication as part of web site technology permits faster responses and more interaction than is possible with other forms of written communication, it does not create the risk that the attorney might be able to use her persuasive ability and experience to influence unduly the potential client's thoughtful decision to hire her. Similarly, although e-mail can be transmitted through telephone lines, its resemblance to a telephone discussion ends with the mechanism of transmission. The static nature of an e-mail message allows a potential client to reflect, re-read, and analyze; the written form allows the potential client to share and discuss the communication with others and maintain a permanent record of its contents; and the mechanical steps involved in sending and receiving messages impose a measured pace on the interchange."

Even acknowledging that chat room discussions take place in real time and that the opportunity to "reflect, re-read, and analyze" is not as apparent as it is in e-mail situations, these factors do not overcome the express requirement in rule 1-400(A) that the communication be "delivered by telephone."

We note that ethics committees in other states, including Florida, Michigan, Oregon, Utah, Virginia, and West Virginia, have concluded that messages delivered via real time Internet communication channels are prohibited solicitations. Some of these states, for example, Florida, have a rule more broadly-worded than rule 1-400, which more readily permits its application to chat room situations. However, other states, including Utah and Michigan, have interpreted their rules regulating in person and telephonic communications to encompass "real time" chat room conversations.

Chat rooms may be subject to abuse since they do not necessarily afford the same opportunity to "reflect, re-read, and analyze," as does simple e-mail. That might be a reason to amend the rule to include a chat room communication as a "solicitation." However, the committee declines to interpret rule 1-400(B) beyond its express language. Our role is limited to interpreting the rule as currently written. Thus, we conclude that the "by telephone" language in rule 1-400(B)(2)(a) does not apply to chat room communications because that would contradict the rule's plain language and undermine fair notice of prohibited conduct.

We have previously emphasized that rule 1-400(B)(2)(a)'s requirement that the communication be "in person or by telephone" is a "bright-line" test which lawyers and disciplinary authorities should be able to understand and apply easily. In California State Bar Formal Opn. No. 2001-155, we concluded that a lawyer's web site does not constitute a prohibited solicitation. True, Attorney here goes a step further, i.e., by communicating in real time with particular prospective clients, as opposed to the static communication to no one in particular in the case of a web site. Nevertheless, the committee is unwilling to conclude that conduct is disciplinable where it does not fit within the specific language our Supreme Court has adopted as a bright-line standard to enable members to predict with reasonable certainty the kinds of conduct in which they may engage.

IV. Other Bases for Regulating Communications: Rule 1-400(D)(1)-(4), (D)(5) & Standard (3)

While not a prohibited solicitation under subdivision (C), Attorney's participation in the mass disaster victims chat room may be regulated under other provisions of rule 1-400. As we noted in California State Bar Formal Opn. No. 2001-155, at page 2, communications that have been found to be "inherently capable of abuse" may be prohibited consistent with the First Amendment. In reaching our conclusion, we relied on the State Bar Request That the Supreme Court of California Approve Amendments to the Rules of Professional Conduct of the State Bar of California and Memorandum and Supporting Documents in Explanation (1987), at p. 18, which in turn cited to Ohralik v. Ohio State Bar Association (1977) 436 U.S. 447. Ohralik addressed the danger that a lawyer may coerce or otherwise take advantage of a vulnerable person during an in-person solicitation. Ohralik concluded that when there is potential for overreaching by a lawyer seeking legal employment, whether by a "solicitation" or a "communication," it may be banned.

In the latter regard, rule 1-400(D)(5) provides that a communication or solicitation shall not "[b]e transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct." Thus, attorneys must always be concerned with the context in which they seek to communicate their availability for a legal engagement. Under our facts, Attorney's conduct is intrusive. Victims and family members who visit the chat room are there to seek emotional support, and do not expect to encounter a lawyer hoping to be retained. Attorney's participation in this particular chat room is therefore a violation of subdivision (D)(5) of the rule.

In addition to the actual provisions of the rule itself, the Board of Governors of the State Bar has adopted 16 standards governing "communications" that are presumed violations of the rule. Standard (3) applies to communications "delivered to a potential client whom the member knows or should reasonably know is 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." Thus, if Attorney under our facts "knows or should reasonably know" that visitors to the mass disaster victims chat room are inhibited from making a reasonable judgment about retaining Attorney because of their "physical, emotional, or mental state," any "communication" Attorney makes about her availability for employment is a presumed violation of rule 1-400.

The lawyer in Ohralik, supra, 436 U.S. 447, personally visited an accident victim lying in traction in a hospital, and another victim from the same accident shortly after she had been discharged from the hospital. The Court reasoned that, under the circumstances, the accident victims "were especially incapable of making informed judgments or of assessing and protecting their own interests." Id., at p. 467. In reaching its decision, the Court was influenced by the common knowledge that persons who have recently suffered a debilitating injury are often in a weakened physical or emotional state, and thus are particularly susceptible to overreaching. Standard (3) incorporates that concept.

Any victim or family member who visits this chat room will likely be doing so for emotional support, which reasonably implies that their emotional state may render them incapable of making a reasonable judgment about retaining Attorney. Attorney should thus be aware that, given that the chat room's prominently displayed purpose, her communication in the chat room will be a presumed violation of rule 1-400 under standard (3).

CONCLUSION

Rule 1-400 regulates communications, including those made through the Internet and chat rooms. Attorney's communications in a chat room for the mass disaster victims described in this opinion are prohibited under subdivision (D)(5) of rule 1-400, and would trigger the presumption under Standard (3).

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.