Jacoby v. State Bar
| Decision Date | 03 May 1977 |
| Citation | 138 Cal.Rptr. 77,562 P.2d 1326,19 Cal.3d 359 |
| Court | California Supreme Court |
| Parties | , 562 P.2d 1326, 4 A.L.R.4th 273, 2 Media L. Rep. 1885 Leonard D. JACOBY et al., Petitioners, v. The STATE BAR of California, Respondent. L.A. 30601. |
Andrew S. Garb, Los Angeles, and Robert N. Harris, Beverly Hills, for petitioners.
Fred Okrand, Jill Jakes, Mary Ellen Gale, Los Angeles, Girardeau A. Spann, Alan B. Morrison, Washington, D.C., Gary Near, Jerome B. Falk, Jr., Howard, Prim, Rice, Nemerovski, Canady & Pollak, Irving F. Reichert, Jr., San Francisco, Laurence D. Rubin and John W. Starr, Los Angeles, as amici curiae on behalf of petitioners.
Herbert M. Rosenthal, Stuart A. Forsyth, Scott J. Drexel, San Francisco, and Robert E. Hinerfeld, Los Angeles, for respondent.
No issue in recent years has generated more controversy among members of the bar than the asserted right of attorneys to publicize their skills and services. And few aspects of the legal system have drawn more public attention than the mounting cost of legal assistance, particularly to middle income persons. The two concerns converge in this case, as we review a recommendation of the Disciplinary Board of the State Bar that petitioners Leonard D. Jacoby and Stephen Z. Meyers, the founders of a low cost legal clinic, be suspended from the practice of law for 45 days primarily because they are alleged to have solicited clients through media interviews in violation of former rule 2 of the Rules of Professional Conduct. 1
Petitioners contend, inter alia, that former rule 2 violates the First Amendment to the United States Constitution as incorporated by the Fourteenth Amendment. 2 We do not reach this broad contention, but hold rather that former rule 2 could not constitutionally be applied to prohibit an attorney from cooperating in the publication of a news article or broadcast on a newsworthy topic, even when the attorney himself is the subject. Accordingly, the proceedings must be dismissed.
The facts are not in dispute. Petitioner Meyers was admitted to the bar in 1967, and petitioner Jacoby in 1968. In 1972 petitioners opened a law office called the Legal Clinic of Jacoby and Meyers, in an avowed effort to provide low cost legal services to that large segment of the population unable to meet to indigency standards of legal aid programs but not affluent enough to retain most law firms. Petitioners instituted a number of cost-saving measures in the operation of their clinic, including extensive use of paralegal assistants and part-time specialists; charging a flat $15 initial consultation fee; location in a storefront rather than in a more traditional office building; and concentration on simple but recurrent legal problems susceptible of resolution by standardized techniques.
News of petitioners' plans attracted the attention of a statewide consumer organization president, who decided to publicize the legal clinic concept. He hosted an open house at the clinic and invited representatives of the news media. Petitioners appeared and responded to questions.
Subsequently, petitioners participated in a number of interviews initiated by news reporters interested in the legal clinic scheme. A sample story resulting from one of these interviews is reprinted in the margin. 3 As there illustrated, the typical article recounted the difficulty of delivering low cost legal services to the middle class and examined some of the procedures used by the clinic to resolve that problem, often comparing fees charged by Jacoby and Meyers for certain standard services with those generally charged by more customary law firms.
Because of the open house, the interviews, and the use of the name 'Legal Clinic,' the State Bar initiated disciplinary proceedings against petitioners. Petitioners called a press conference to discuss the charges against them, and at the conference issued a press kit as background material for the media representatives. Included in the kit were an explanation of the purpose of the clinic and brief biographies of its staff attorneys; a comparative fee schedule setting forth the fees charged by the clinic and the former suggested minimum fee schedules of local bar associations; favorable responses from clients to questionnaires sent out by petitioners; letters of support from various attorneys and legislators; and copies of correspondence between petitioners and the State Bar. Petitioners subsequently gave additional interviews resulting in news articles similar to those already described, except that the later articles also reported the State Bar accusations. The State Bar then amended the allegations against petitioners to include charges based on the press kit and the later interviews.
At no time did petitioners pay for the publication of any of the articles written about them, nor are they charged with directly soliciting business from any identifiable client.
On these facts the local administrative committee found that petitioners' conduct in publicizing their legal clinic, the expertise of its personnel, and the fees they charge, was 'principally directed' to generating business for their law firm. But the committee also found that 'In doing so, (petitioners) honestly believed that the financial success of their said law firm was necessary to prove the practicability of the 'legal clinic' concept they claimed to have originated or been the first to implement.'
The committee, by a two-to-one vote, concluded that petitioners violated former rule 2 both by their media contacts and by their use of the 'assumed and/or misleading name' of the Legal Clinic of Jacoby and Meyers. The committee further concluded, however, that petitioners' conduct did not involve moral turpitude, dishonesty, or corruption. (Bus. & Prof.Code, § 6106.)
The disciplinary board adopted almost verabatim the findings and conclusions of the committee, and recommended that petitioners be suspended from the practice of law for 45 days. Four members of the board dissented, and would have dismissed the charges.
As will appear, we are of the opinion that the finding that petitioners' conduct was principally directed to solicitation of clients, and the conclusion that it may therefore be proscribed under former rule 2, are not supportable in light of recent decisions of this court and the United States Supreme Court sharply restricting governmental regulation of constitutionally protected speech.
Before reaching the solicitation charges, we discuss briefly the allegation that petitioners practiced under an assumed or misleading name. This charge is based on section (a), subdivision (3), of former rule 2, which specified that the only permissible 'sign' for a lawyer to use was one 'disclosing his name or the name of his law firm, and the word 'attorney,' 'attorney at law,' 'counselor at law,' 'lawyer,' or 'law office,' or, if a patent lawyer, 'patent lawyer ". Inasmuch as petitioners call their firm a 'legal clinic' rather than a 'law office,' their conduct is arguably prohibited under a strict reading of the rule.
It is apparent, however, that this portion of rule 2 principally served the purpose of preventing deception, and the State Bar has not shown that the term 'legal clinic' is in any sense deceiving. Indeed, nowhere in the State Bar's 210-page brief is the issue even mentioned. Viewing the matter without such assistance, we find it difficult to comprehend why 'legal clinic' is more misleading than the permissible designation of 'law office.' In petitioners' circumstance, 'legal clinic' may actually be more descriptive than 'law office' because of the significant differences between petitioners' operation and a more traditional law practice. Certainly the use of 'legal clinic' appears less misleading than the widespread custom of retaining in the title of a law firm the name of partners long since deceased.
The triviality of the misleading name charge against petitioners is further emphasized by two recent bar association developments. The American Bar Association (ABA) has announced it is funding an $80,000 'experimental, innovative legal clinic program for the delivery of legal services.' (ABA press release, Oct. 3, 1975.) And the State Bar itself, in proposed new rules on advertising now under consideration, gives as an example of a permissible title for a law firm, 'Legal Clinic of Doe and Roe.' (Proposed Rule 2--102, subd. (B)(3)(b).) Under these circumstances we conclude that petitioners have committed no professional misconduct in entitling their office, 'Legal Clinic of Jacoby and Meyers.' We turn now to the solicitation issue.
Surprisingly, the precise question before us--whether a lawyer may be prohibited from participating in the preparation of a news article about himself--has rarely arisen in reported decisions. The two principal opinions on point have reached conflicting results in slightly different factual contexts. In State v. Nichols (Fla.1963) 151 So.2d 257, a lawyer was interviewed for a newspaper article which described the success of his firm, stated that hundreds of lawyers referred negligence cases to the firm, and related what other attorneys and judges said about the lawyer. In addition, the attorney contributed several quotations praising the expertise of his associates and investigators. The Florida State Bar recommended that the attorney be disciplined for violating a canon prohibiting self-laudation; but the Florida Supreme Court, weighing the value of the news article as a whole against its self-laudatory aspects, exonerated the attorney. A contrary conclusion was reached by a New York intermediate appellate court in In re Connelly (1963) 18 A.D.2d 466, 240 N.Y.S.2d 126, which censured members of a law firm who cooperated in a Life Magazine article about the firm. Neither Nichols nor Connelly dealt at any length with possible First Amendment implications.
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