THIS WEEK'S QUESTION: Several weeks ago my husband was seriously injured in an automobile accident. We have had several thousands of dollars in medical expenses already. Last week we had a young man come to our door who tried to sign up my husband as a client for a law firm here in San Jose. Evidently, the police accident report listed our home address. He said that he was an "investigator", but I felt uneasy about the situation. Is this legal? (I told him "no thanks!")
/s/ Rachael R., Almaden Valley
Dear Rachael: I can see why you might have felt uneasy about that particular situation, Rachael. General advertising for legal services may be one thing but outright solicitation might be another. And another problem may be when one serves as a "runner" or "capper". The State Bar Act makes it unlawful for "any person", i.e., a lawyer or nonlawyer, "to act as a runner or capper" for an attorney or "to solicit any business" for an attorney in any public place or upon private property.
So, you ask just what is a "runner" or a "capper". These terms refer to anyone "acting for consideration. . . as an agent" of an attorney or law firm in the solicitation or procurement of business for the attorney or law firm. And the rule applies to whether the attorney or firm practices in California or in another state. An "agent" is one who represents another in dealing with one or more third persons.
According to California Business and Professions Code §6152(a)(2), it is unlawful for an attorney (or anyone else) to solicit another person to act as a runner or capper in violation of the law. And any contract obtained through a runner or capper is no good. Business and Professions Code §6154(a) provides that any contract for professional services secured by a lawyer or law firm through the services of a runner or capper is void. Not only may the runner or capper be in difficulty with the law but the attorney as well may be in trouble with the State Bar. (The State Bar is the licensing agency that grants us attorneys the "privilege" to practice law in this state.)
In addition to facing criminal penalties, a lawyer may be disciplined for using runners and cappers to solicit business improperly. It may be alright to recommend professional employment in many situations, of course, but not in the context of the employment of runners and cappers. California Penal Code §646.5 provides that "A member [of the State Bar] shall not knowingly assist in, solicit or induce any violation. . . of the State Bar Act". Also, committing an act involving moral turpitude, dishonesty or corruption, such as acting as an aider and abettor, is ground for attorney disbarment or suspension. And this is regardless of whether the act is a felony or misdemeanor and whether or not it was performed while acting as an attorney.
The penalty for a violation of the law concerning the prohibition of solicitation (California Business & Professions Code §6152) is very clear: "Any person, firm, partnership, association or corporation violating subdivision (a) of §6152 is punishable, upon a first conviction, by imprisonment in a county jail for not more than one year or by a fine not exceeding $15,000, or by both that imprisonment and fine." And "upon a second or subsequent conviction, a person, firm, partnership, association, or corporation is punishable by imprisonment in a county jail for not more than one year, or by imprisonment in the state prison for two, three, or four years, or by a fine not exceeding $15,000, or by both that imprisonment and fine."
Any consumer can read these California Business and Professions Code sections for himself or herself by going online and entering the code sections mentioned above in the search box of that particular search engine. The legal provisions should be up on the screen in about a half a second. Also, if a consumer is aware of any runner or capper, it would be good to contact either the State Bar of California or the consumer's local police department. As was stated above, general advertising is one thing but solicitation through runners and cappers is quite another thing.
/s/Donald J. DeVries, Almaden Valley
Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at [email protected], with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.