Ethics Opinon 1975-11

August 8, 1975

SUBJECT: ANNOUNCEMENTS; OFFICE OPENING; SOLICITATION

I
QUESTION PRESENTED

May a former associate (i.e., employee) of a law firm establishing his own private practice or join a new or another firm send announcements thereof to clients of his former law firm (i) for whom he acted as the responsible attorney in the performance of legal services by such firm, (ii) for whom he has performed legal services during the course of his employment, and (iii) for whom he has performed no legal services.

II
SUMMARY

(i) Yes. (ii) Probably, yes. (iii) Probably, no. Upon leaving his former firm, an associate may send announcements to clients with whom he has had personal contact through the firm advising them of his change of practice.

III
STATUTES AND CANONS

Rule 2-103 of the California Rules of Professional Conduct ("California Rules") and Disciplinary Rule 2-102 of the American Bar Association ("A.B.A.") Code of Professional Responsibility ("the Code" and "A.B.A. Rules") provide in substance that an attorney may mail professional notices stating new or changed associations or addresses or similar matters only to lawyers, clients, former clients, personal friends and relatives.

IV
ETHICS OPINIONS

Prior to the promulgation of the A.B.A. Code, the Committee on Professional Ethics of the American Bar Association ("A.B.A. Committee") has often considered this and similar issues.

In A.B.A. Informal Opinion No. 146 the A.B.A. Committee held that a lawyer opening a new office may send a notice thereof to persons with whom he has established a personal relationship as would reasonably justify a belief that he enjoys the friendship and confidence of such person to such extent that the person receiving the announcement would consider it news of genuine interest and value.

In Formal Opinion No. 301 the A.B.A. Committee, interpreting Canon 27 of the A.B.A. Canons of Professional Ethics, held that an attorney leaving government practice may send an announcement of his removal to private practice to attorneys, former clients, and to other persons with whom the attorney had a personal relationship such as to make it clear that they would be interested in knowing that he had returned to private practice, but not to persons with whom he has had no professional dealings or relations and to whom such an announcement would merely be a suggestion that he be employed. These opinions have been repeatedly followed by that Committee. See Informal Opinion Nos. 397, 530, 637 and 787. Canon 27 prohibited advertisements or circulars not warranted by personal relations, and did not specify, as does A.B.A. Rule 2-102 and California Rule 2-103, the persons to whom such announcements may be sent. Nevertheless, the ethical rationale of Formal Opinion No. 301 remains valid.

Attorneys should be able to send announcements containing only the information prescribed by California Rule 2-103 to those people who have a genuine interest in his practice and whereabouts, without the fear of improper advertising or solicitation. In its Opinion No. 178, the Los Angeles County Bar Association Legal Ethics Committee opined that an attorney leaving the employ of a school district could properly send notices to present or former students or personnel of the school, if he has established personal relations with them and his contact with them has been such as to reasonably indicate that they would be personally interested in knowing his whereabouts, present activities, and plans. The element of personal contact is further illustrated in A.B.A. Informal Opinion No. 637. A new attorney in town desired to send notices of the establishment of his new office to friends of his parents in the community. The A.B.A. Committee held that it was improper to send announcements to such persons merely because they were acquaintances of his parents.

The focus then should not be on the existence of any formal relationship. The source of clients to a law firm, the existence of an attorney-client relationship, or the distribution of profits used by the law firm with respect to the origination of business are not considerations which are relevant in determining whom would be proper recipients of such announcements.

Applying these principles, A.B.A. Informal Opinion No. 681 addresses itself to the question at hand. In his inquiry to the Committee, the attorney, who desired to send announcements, stated that most of the clients of his former firm were originally produced by a senior partner, and not himself. The Informal Opinion held that without regard to the origination of clients the attorney could send notices to his own clients, and to those clients of the old firm for whom he had worked, where his relationship to such clients was personal in nature. In addition, it held that under no circumstances could announcements be sent to clients of his former firm with whom he had no personal relations while associated with that firm. It also held that it was a question of fact in each case whether or not each client was an appropriate recipient of such an announcement. A.B.A. Informal Opinion No. 681 has since been followed by A.B.A. Informal Opinion Nos. 787 (subrosa) and 910. See also New York County Lawyers Association Opinion No. 109.


V
A.B.A. INFORMAL OPINION NO. 241

In his treatise Legal Ethics Henry Drinker states:

"One employed by a law firm and leaving to engage in independent practice may send announcements to his individual clients but not to the firm clients whom he has served."

Drinker, Legal Ethics 240 (1953)

Drinker cites A.B.A. Informal Opinion 241 as the only authority for this statement. Only an abstract of the holding of this opinion has been published. See Drinker, Legal Ethics, Appendix A. Apparently, the holding was based on Canon 7 of the A.B.A. Canons which proscribed direct or indirect efforts by an attorney to encroach upon the professional employment of another attorney. There is no parallel California Rule or Canon, Ethical Consideration or Disciplinary Rule in the new A.B.A. Code, which replaced the A.B.A. Canons.

In balancing the competing considerations ¾ possible encroachment of another's legal employment, and making legal counsel available (Canon 2 of the A.B.A. Code) ¾ the balance should be toward the latter. A client is always free to employ the lawyer of his choice. When a client does not know the whereabouts of the attorney of his choice, this right is necessarily limited. Accordingly, in Informal Opinion No. 910 the A.B.A. Committee held that if a client decides, without coercion or suggestion, that he wishes the individual lawyer who has handled his legal business previously to continue to do so even though that lawyer is no longer with the same law firm, there is no reason why the lawyer should not accept the employment. On the other hand, if the client wishes to remain with the firm which originally represented him, even though the lawyer who had actually handled his business for him is no longer with that firm, that too is his decision, and the lawyer should make no attempts to persuade him to do otherwise. Of course, the announcements authorized by California Rule 2-103(A)(2) permit no such suggestion.

The credence apparently given to client origination in Informal Opinion 241 has not only been abandoned by the A.B.A. Code, but was subsequently ignored by the A.B.A. Committee even prior to the A.B.A. Code's adoption. Accordingly, the Informal Opinions cited above, even though some cite Informal Opinion No. 241, all tacitly overlook or overrule its proscription against mailing announcements to clients of the law firm for whom the departing attorney provided legal services. Any precendential weight that Informal Opinion No. 241 may have formally had appears to have been abrogated and its rationale abandoned.

IV
ANALYSIS

California Rule 2-103(A)(2) provides that an attorney may send a brief professional announcement card stating new or changed associations or addresses or similar matters to lawyers, clients, former clients, personal friends and relatives. Clients and former clients include those for whom he has personally rendered legal services to such a degree as to make their relationship personal in nature, despite the fact that they were technically clients of the attorney's former law firm.

This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.
 

 

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.