Banning attorney advertising doesn't help domestic violence victims - better counsel does

The legislature has declared that domestic violence accounts for more than 15% of all violent crimes and more than 10% of all homicides in California. Family Code § 6309(a)(1)(A). Additionally, the risk of violence is heightened during a person's attempts to leave the relationship. Family Code § 6309(a)(1)(B). This is well known to attorneys, counsellors, pro bono legal service providers, and shelter operators.

Recently, the State Bar's Committee on Professional Responsibility and Conduct (COPRAC) was informed by victim advocates that some attorneys were monitoring court filings and mailing attorney advertisements to respondents in domestic violence restraining order (DVRO) proceedings. In response, COPRAC has proposed an amendment to Rule 7.3 of the Rules of Professional Conduct to prohibit attorneys from advertising their services "in connection with" DVRO proceedings until after the restraining order is "legally served" on the respondent and a proof of service appears in the court docket.

COPRAC offers several reasons for the proposed rule. First, there is a concern that advertising could alert a respondent to the filing before a petitioner has completed safety planning and the court has had an opportunity to take protective steps. Second, COPRAC fears that the advertising could trigger harassment or violence. Third, it might enable a respondent to evade legal service. Finally, COPRAC worries that advertising could undermine trust in the legal system and discourage victims from pursuing legal protection.

Domestic violence is a serious issue. To that end, we ought to ensure that the policies we implement are effective at addressing the risks and that the methods chosen are properly tailored and in harmony with other important public interests. In this case, implementing an advertising ban is the most incomplete, least effective, and sketchiest way to address the root problem. COPRAC should be encouraged to pursue a different course.

Because petitioners in DVRO proceedings can be exposed to a greater risk of potential violence during the time they are leaving an abusive relationship, COPRAC should issue an ethics opinion addressing the duties of an attorney representing a domestic violence victim. Every attorney has a duty of competent representation imposed by Rule 1.1 of the Rules of Professional Conduct. That duty demands that counsel: reasonably advise the client regarding the risks associated with a DVRO; properly time, plan and execute filing and service of the DVRO or postpone filing until after appropriate planning and safety measures are complete; anticipate the possibility for delays in service and postponement of hearings; and address the risks associated with the possibility that the restraining order may be denied by the court or withdrawn by the client. It would be very challenging for an attorney to defend advice that failed to include at least this much information. An attorney's failure to ensure that safety and contingency planning is completed before taking steps that might trigger violence should be considered inexcusable. Such failings could be viewed as reckless disregard and grossly negligent misconduct leading to the imposition of discipline and exposure to monetary damages.

Likewise, the legislature and the courts should take additional steps to require that every domestic violence counsellor, shelter, and pro bono service organization provide information and recommendations to potential victims that specifically address the importance of taking appropriate protective and safety steps before filing public court documents.

To protect the public, and especially unrepresented litigants, a rule of court ought to be adopted requiring unrepresented petitioners in divorce and DVRO proceedings to watch a presentation providing education, information and links to domestic violence resources. Such a presentation should specifically address the issue of the risk of domestic violence, when the risk is greatest, and the importance of safety planning and taking reasonable protective measures before any court documents are filed. The courts should also reconsider current policies towards temporary sealing of DVRO petitions.

These proposals represent the most effective and narrowly tailored means of protecting domestic violence victims as well as the interest of the public. The problem is not addressed by banning attorney advertising. The risk of violence remains. The public also has a substantial interest in the free flow of information about the availability of legal services. Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 472(1986) established that targeted mailings by attorneys advertising their legal services is protected as commercial speech under the First Amendment. Commercial speech that is not false or deceptive may be restricted only in service of a substantial governmental interest through means that directly advance that interest.

Attempting to address the risk of violence through a ban on legal advertising is not only ineffective but also carries countervailing disadvantages. First, it is not possible to demonstrate that but for legal advertising, an abuser would not have committed violence. We cannot know whether a particular aggressor would have committed violence, regardless of a restraining order. Nor would it be wise, in the absence of such a link, to discount the times violence has been averted because of early lawyer intervention.

Rather than advancing public trust in the legal system, the proposed rule could have exactly the opposite effect. The ban will likely be viewed by many as giving an unfair tactical advantage to one side in DVRO proceedings. Although continuances are possible, it could also delay and prejudice a respondent's ability to select and retain legal counsel and to prepare an appropriate defense, especially in situations involving unscrupulous litigants employing a DVRO as a means of achieving some collateral objective. Because a DVRO can involve substantial deprivations of property, carry severe adverse employment consequences, and impose other serious burdens on the accused, a respondent deserves legal protection and unfettered access to legal services.

There is also no data to support COPRAC's concern, that attorney advertising is a significant motivator discouraging victims from pursuing legal protections. The actual fear that harm could result from seeking a separation from an abuser, through a DVRO or otherwise, is the most obvious factor that could discourage some from seeking legal help. Attorney "junk mail" advertising must be far down the list of motivators and not likely a realistic consideration. 

The worry that attorney advertising could alert a respondent before the court could take protective steps is at odds with the court's power. Due process requires that a respondent be given a fair opportunity to be heard. But it is not clear what additional "protective steps" the court should be expected to take until after the respondent has an opportunity to answer, and why the court cannot take those steps already. To the extent a rule or procedure exists that prevents a court from taking needed protective steps, that problem should be addressed directly. A ban on attorney advertising will not fix that problem.

Another countervailing consideration is that an advertising ban could contribute to delay in respondents being able to identify and retain counsel. A respondent needing more time to respond to a DVRO is entitled to an automatic continuance as a matter of right. See Fam. Code § 245(a). The result is counterproductive, as it could delay court action as well as additional protective steps.

The fear that a respondent might be "tipped off" by attorney advertising and try to evade service of a DVRO is an insufficient reason to justify a ban. It comes as no surprise that some people will attempt to evade service of process. Those so inclined may, for example, screen visitors, be on the move, keep unusual or unpredictable hours, or live in inaccessible or difficult to access areas. Furthermore, a respondent could be "tipped off" through a variety of means, including friends, private investigators, counsellors or others seeking to offer services to a respondent. In this sense, an attorney advertising ban creates a false sense of security.

Consequently, the responsibility does, and should, remain squarely with the alleged victim's lawyer, as well as counsellors, shelters and support organizations, to assist victims by explaining the risks, anticipating these sorts of everyday problems, and providing appropriate guidance regarding planning and implementation of safety plans in advance of the filing and service of a DVRO.

In Shapero, the Supreme Court recognized that the only reason to send a targeted advertisement to someone who might find the legal services useful is to reach people who actually need the legal help advertised by the lawyer. Such advertising cannot be banned because it is more efficient or because it is objectionable to focus the advertising on those who would be most interested. Shapero, supra, 486 U.S. at 473-474.

The best way to address the risk of violence associated with DVRO proceedings is to focus on the most effective and precise means for achieving that objective. See In re R.M.J., 455 U.S. 191, 203 (1982). This starts with recognizing the ethical duty of counsel to advise, plan and implement safety measures before making filings, and to anticipate foreseeable issues, such as the possibility of delay, denial or withdrawal of a DVRO application. Rather than ban lawyer advertising, COPRAC should issue an ethics opinion reminding attorneys that the duty of competence requires this sort of counseling and preparation. COPRAC should also encourage the court to revisit its rules on temporary sealing of court documents and to implement a rule that requires unrepresented individuals to listen to a safety presentation that gives them the same sort of advice that a competent attorney would give any person seeking a DVRO about the risks of violence and the importance of having a plan in place before proceeding.

The fact that some find attorney advertising embarrassing, offensive or even sleazy, cannot justify suppressing it. When it comes to attorney advertising, we cannot be the arbiters of good taste. Zauderer v. Office of Disciplinary Counsel of Supreme Court, 471 U.S. 626, 648 (1985). COPRAC sets a dangerous First Amendment precedent by proposing to ban advertising as a means of solving a problem best addressed in other ways.

The State Bar is soliciting public comment on the proposed amendment to Rule 7.3. The deadline to comment is July 18, 2025.