Cal. State Bar Formal Opn. No. 2004-166 — Communications with Prospective Clients in Mass Disaster Internet Chatrooms

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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.”1/ 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.2/ Thus, we first address
1/ For purposes of this opinion, “chat room” refers to an Internet location where participants communicate with
other participants electronically in real time. Unlike ordinary e-mail or electronic messages posted to a computer
bulletin board or listserv, a chat room is designed to allow participants to exchange messages back and forth
instantaneously. In addition, unlike “instant messaging,” which typically involves real-time communication
between only two people, a chat room typically allows several people or even a large group to communicate
simultaneously.
2/ Because the chat room is a public setting, none of the chat room participants would have an expectation of
privacy. (Compare Cal. State Bar Formal Opn. No. 2003-164 [No expectation of privacy when placing a call to a
radio show that broadcasts the call over the airwaves].) Therefore, the Committee has not addressed whether the
chat room participants may have engaged in a confidential consultation with Attorney. In addition, the Committee
has considered Business and Professions Code sections 6157 et seq. covering electronic and other mass media
attorney advertisements and has concluded that those provisions do not apply to the conduct of an attorney under
these facts because it is not a broadcast or mass media advertisement. (Bus. & Prof. Code, § 6157, subds. (c) & (d).)

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whether Attorney’s participation constitutes a “communication” within the meaning of subdivision (A) of rule 1-
400.3/ 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).4/
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.
3/ Unless otherwise indicated, all rule references are to the Rules of Professional Conduct of the State Bar of
California.
4 / Not every communication that tangentially relates to the availability for professional employment will be subject
to regulation. Although the scope of rule 1-400(A) is broad, its reach is tempered by the phrase “concerning the
availability for professional employment.” In a comprehensive examination of the constitutional implications of the
regulation of lawyer advertising, the Los Angeles County Bar distinguished between “messages . . . concerning the
availability for professional employment directed to any former, present, or prospective client” and all other
messages, and concluded that only the former may be subject to regulation as commercial speech. See Los Angeles
County Bar Association Formal Opn. No. 494. See also Central Hudson Gas & Elec. Corp. v. Public Service
Commission of New York (1980) 447 U.S. 557 [100 S.Ct. 2343, 65 L.Ed.2d 341].

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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.” (Emphasis added).
Thus, to be a “solicitation” under rule 1-400(B), a lawyer’s communication must satisfy two elements. The first,
found in subparagraph (B)(1), addresses the communicator’s motive; only where a “significant motive” for the
communication is “pecuniary gain” will it be a “solicitation.” 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, found in subparagraph (B)(2), is satisfied if either of two tests is met: (1) a particular mode of
communication, i.e., “in person or by telephone,” is used, subparagraph (B)(2)(a); or (2) the recipient of the
communication is known to be represented by counsel, subparagraph (B)(2)(b). 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 (after all, people in chat rooms carry on
conversations – albeit by typing rather than having sound waves transmitted and converted into voices) 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.5/ However, other states, including Utah and Michigan,
5/ Florida Rule of Professional Conduct 4-7.4(a) provides in part that:

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have interpreted their rules regulating in person and telephonic communications to encompass “real time” chat room
conversations.6/
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.7 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.8/
“(a) Except as provided in subdivision (b) of this rule, a lawyer shall not solicit professional
employment from a prospective client with whom the lawyer has no family or prior professional
relationship, in person or otherwise, when a significant motive for the lawyer’s doing so is the
lawyer’s pecuniary gain.” (Emphasis added.)
See also Florida Bar Ethics Opn. A-00-1 (08/15/2000).
6/ Utah has determined that chat rooms are the equivalent of “in person” communications. Utah Ethics Advisory
Opinion 97-10. See also, Michigan Bar Ethics Opn. RI-276 (07/11/1996); Illinois Bar Ethics Opn. 96-10
(05/16/1997); Virginia Bar Lawyer Advertising Opn. A-0110 (04/14/1998); West Virginia Bar Ethics Opn. 98-
03(10/16/1998), which generally have held that lawyers participating in chat rooms implicate their states’ rule
barring solicitation (usually some variation of Model Rule 7.3(a)). But cf. Arizona State Bar Association Ethics
Opn. 97-04 (4/7/1997) (communications in chat rooms not the same as prohibited in-person and telephonic contacts
“because there is not the same element of confrontation/immediacy as with the prohibited mediums”).
The District of Columbia has taken a slightly different approach from these states. Although it has not expressly
analogized chat room communication to in-person or telephonic communication, its ethics committee has
nevertheless cautioned lawyers that they must be careful that their conduct in a chat room does not violate the
proscriptions of D.C. Rule of Professional Conduct 7.1(b). In D.C. Ethics Opn. 316 (2002), after first observing that
unlike other states, the D.C. rule does not draw a distinction between in-person and written communications, the
committee opined that:
“Lawyers communicating about their services in chat rooms therefore must take care not to run
afoul of D.C. Rule 7.1(b) (2), which prohibits solicitations that involve the ‘use of undue
influence,’ and D.C. Rule 7.1(b) (3), which prohibits lawyers from seeking employment by a
potential client whose ‘physical or mental condition’ makes rational judgment ‘about the selection
of an attorney unlikely.’”
Our approach is similar to that of the District of Columbia in focusing on the circumstances surrounding the
communication rather than on its specific mode. See Part IV, below.
7/ See California State Bar Formal Opn. No. 2001-155 at page 2.
8/ If rule 1-400 is to prohibit a lawyer from engaging in chat room conversations where a significant motive is
pecuniary gain and still retain its capacity to provide lawyers with guidance on how to conform their conduct, then
the rule itself should be amended to expressly prohibit such conduct. We note that recently the American Bar

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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.9/ 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 [98 S.Ct. 1912, 56 L.Ed.2d 444]. 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.10/ Attorney’s participation in this particular chat room is therefore a violation of subdivision (D)(5) of the
rule.11/
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
Association amended its Model Rule 7.3(a), relating to “Direct Contact With Prospective Clients” to include a
prohibition on “real-time electronic” contact, as well as “in-person” and “live telephone” contact. Although “real-
time electronic” contact is somewhat broad, it has an advantage in that it is not tied to a specific electronic
technology, and gives sufficient notice to lawyers about what kind of conduct will not be tolerated.
9/ The specific context of our statement in California State Bar Formal Opn. No. 2001-155 was resolving whether a
web site is a “solicitation” under rule 1-400.
10/ The prohibition under federal law on making any kind of unsolicited communication--even letters that do not
involve the danger of overreaching as does the situation here--to victims of aircraft accidents for 45 days following
the accident supports the Committee’s conclusion that the conduct described here is intrusive. (E.g., 49 U.S.C. §
1136.)
11/ By this, we do not mean to suggest that all visits to all chat rooms by attorneys motivated to generate legal
business are improper. We recognize the importance of providing truthful, accurate information about the
availability of qualified lawyers to the public. Thus, in other contexts (for example, a chat room dedicated to the
“legal rights and remedies of mass disaster victims”), the same conduct exhibited by Attorney here would not
involve intrusion. Still, any communication the lawyer makes must comport with the requirements of subparagraphs
(1), (2), (3), and (4) of subdivision (D) of the rule that communications not be false, misleading, or deceptive.

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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.

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