holding that attorney advertising, though not false, was misleading because “[a] necessary 5 fact ha[d] been omitted”
How later courts described this case
- holding that attorney advertising, though not false, was misleading because “[a] necessary 5 fact ha[d] been omitted”
- noting that Cal. Bus. & Prof.Code § 17200 and § 17500 “embrace not only advertising which is false, but also advertising which although true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the public”
- holding that attorney advertising, though not false, was misleading because “[a] necessary fact ha[d] been omitted.”
- The UCL and FAL “have been interpreted broadly to embrace not only advertising which is false, but also advertising which although true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the public.”
Written by the judges who cited it.
The opinion
BIRD, C. J., Concurring and Dissenting.
I agree with Justice Grodin that an attorney may not be disciplined for conduct—or for omissions—which he or she could not reasonably foresee would be found to violate a rule. I write to observe that two other violations upheld by the majority fall within this category.
First, petitioners could scarcely have anticipated that it would be necessary to spell out that they charge fees for legal representation in order to avoid a rule 2-101(A)(3) violation. (See maj. opn., ante, at p. 627.) Few, if any, lay persons are likely to assume that lawyers work free of charge. Though Russo’s attorney claimed he believed that the $60 filing fee would cover attorneys’ fees, evidently Russo herself was not so naive. (Id., at p. 618.)
Second, the majority chastise petitioners for failing to identify their letters clearly as communications for employment. I agree that the letters could have been clearer about the scope of petitioners’ practice and their avail *629 ability for employment. Yet, the majority’s solution—that the letters say “this is an advertisement”—is not one which petitioners could have divined from the rules. Rule 2-101 (A)(4) allows attorneys to “indicate clearly, expressly or by context” that their communications concern availability for professional employment. The context of these letters, written on law firm stationery and inviting the recipient to call for a free initial consultation, must have suggested strongly to most lay persons that petitioners were available for employment after that consultation. 1
Furthermore, the majority’s proposed message is no improvement. It is more misleading than the letter which was actually sent out. Petitioners were not available for employment in the state court proceedings in which the letter recipients were involved. Their practice was exclusively federal.
The majority’s affirmance of these two unforeseeable “violations,” I submit, will not motivate the State Bar to clarify its rules either through the adoption of standards under rule 2-101(D) or through advisory opinions. (Conc. and dis. opn. of Grodin, J., post at p. 630.) On the contrary, it suggests that such standards and opinions are unnecessary. I would urge the State Bar and the court to tread carefully in this area of constitutionally protected speech. Violations should be found only when it is clear that an attorney must reasonably have known that his conduct would lead to such a result.
The finding concerning rule 2-101(A)(4) suffers from a procedural flaw as well. Though the majority claims otherwise (maj. opn., ante, at p. 621, fn. 10), I cannot find any allegation in the notice of violation that petitioners were charged with violating this rule. On the contrary, that notice refers repeatedly to the letters as “communications regarding availability for employment” or as “solicitations” without ever suggesting that the letters might have been viewed otherwise by their recipients.
Even the State Bar’s trial brief failed to mention this alleged violation. It would be impossible to deduce from the notice or from the brief that the letters “[f]ail[ed] to indicate clearly, expressly or by context, that [they were] ‘communicationfs].’ ” (Rule 2-101(A)(4).)