The philosopher-lawyer Jeremy Bentham characterized as “dog law” a system in which a person has no way of knowing that he is doing something wrong until he is punished for it.
I agree that rule 2-101 (A), insofar as its application is called into question here, is valid on its face as a permissible means of protecting the public against false or misleading communications, or especially intrusive communications, by members of the State Bar seeking professional employment. The rule is broadly phrased, however, and reasonable people can differ as to its application in a particular case. Because communications by attorneys to prospective clients are within the ambit of the First Amendment (In re R.M.J. (1982) 455 U.S. 191 [71 L.Ed.2d 64, 102 S.Ct. 929]; Matter of *630Koffler (1980) 51 N.Y.2d 140 [432 N.Y.S.2d 872, 412 N.E.2d 927]) and because rule 2-101(A), like other rules of professional conduct, is enforced through disciplinary proceedings which may lead to sanctions ranging from reproval to disbarment, the potential for the sort of “dog law” that transgresses upon constitutional principles is particularly acute.
The situation is analogous to the imposition of civil penalties (as distinguished from injunctive relief) for false or deceptive advertising (Bus. & Prof. Code, § 17500 et seq.). In People v. Superior Court (Olson) (1979) 96 Cal.App.3d 181, 195 [157 Cal.Rptr. 628], the Court of Appeal, rejecting a requirement that the People prove knowledge of falsity or reckless disregard of the truth, held that the imposition of civil monetary penalties for the negligent dissemination of untruthful or misleading advertising does not offend the First Amendment. The court implied that a strict liability principle would be constitutionally objectionable.
I would hold that an attorney violates rule 2-101 (A) only when he knows, or reasonably should know, that his communication is in violation of that rule. Such a standard should impose no undue burden upon the State Bar. It should, on the other hand, motivate the State Bar to adopt additional standards for the implementation of rule 2-101(A), as contemplated by the rules themselves.1 It should also motivate the State Bar to provide some procedure for advising attorneys who are in genuine doubt as to whether their communication would violate the rules. (See Matter of Koffler, supra, 432 N.Y.S.2d at p. 878.)
In this case, I agree with the majority that petitioners should have been aware that their mass mailing campaign, in the form of letters which purported to give particularized information to recipients engaged in litigation, would invariably mislead some,2 and on that ground I concur in the finding *631that petitioners violated rule 2-101(A)(2). I concur also with respect to the other violations except for the asserted violation of rule 2-101(A)(6), which prohibits transmission of communications “in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats or vexatious or harassing conduct.” It seems quite clear from the language of the rule, as well as from the standards which the State Bar Board of Governors has adopted (see fn. 1, ante), that the rule is directed to the time, place, and manner of the communication rather than to its substance. Consequently, I do not believe that communication by mail can be said to violate that rule. In Matter of Koffler, supra, 432 N.Y.S.2d 872, the New York Court of Appeals rejected the bar association^ claim that it was necessary to prohibit mail solicitations in order to protect privacy and prevent “overbearing persuasion.” The court held that these factors “which could conceivably be present in telephone solicitation ... are not sufficiently possible in mail solicitation to justify banning it. As the Supreme Court put it in Consolidated Edison v. Public Serv. Comm. (447 U.S. 530, 542-543), a recipient of a lawyer’s letter ‘may escape exposure to objectionable material simply by transferring . . . [it] from envelope to wastebasket.’ It is not enough to justify a ban that in some situations ... a solicitation letter may be offensive to the recipient, or that some people may fear receiving a lawyer’s letter . ...” I agree.
Rule 2-101(D) provides in part: “The Board of Governors of the State Bar shall formulate and adopt standards as to what ‘communications’ will be presumed to violate subdivisions (A) or (B) of this rule 2-101.” The standards which have been adopted to date declare a presumption of violation in communications which contain guarantees, warranties, or predictions regarding the result of legal action or testimonials about or endorsements of a member; communications delivered in person or by telephone to a potential client who 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; and communications transmitted at the scene of an accident or at or en route to a hospital, emergency care center or other health care facility.
The letters to Sitelines, whose attorney had determined that it was judgment proof, and to Main, who had been making stipulated payments on the judgment taken against him, stated: “This creditor, who holds the judgment against you, has taken one more step, that maybe you do not know about. A writ of execution has been issued by the Court. This is a Court order, ordering the Sheriff to levy on your assets.” While possibly accurate in the abstract, it was not so in either of these cases. It implied that the recipients’ assets would *631be seized, and failed to note that such seizure would occur only if the creditor asked the sheriff to execute the writ. Officers of the corporation were misled to the actual injury of the corporation, and Main was understandably upset by the implication that notwithstanding his compliance with the stipulation the creditor was about to seize his assets.
The letter to Wagstaff, whose attorney had opposed the creditor-plaintiff’s summary judgment motion, recited that the plaintiff had asked the court “to order judgment against you. After judgment is ordered, the next step is to have the Court issue a writ of execution against you. This is a Court order, ordering the Marshall or Sheriff to levy on your assets, car, paycheck, bank account, etc. [H] We recommend this problem be taken care of right away, before you are hit with a judgment.” The clear implication of the language was that unless the recipient took some unspecified action beyond that which his attorney had taken, a judgment would be entered against him and his assets seized.
The letters to Parayno, whose attorney had filed an answer to the creditor’s complaint, used the same language and conveyed the same implication. In the Sims case the language was the same. In that case, since judgment had been taken, and the record does not reflect that it had been paid, the inaccuracy was minor, but the implication that her assets were in danger of seizure was not.