Hello everyone and welcome to this Ethics Alert which will discuss the recent California Formal Ethics Opinion which addresses ethics issues related to lawyer blogging and advertising and provides guidelines for lawyers who blog. The Opinion is The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2016-196 and the ethics opinion is here: Cal. Formal Opinion No. 2016-196
The opinion reviews the application of advertising rules to attorney blogging and when blogging by an attorney considered a “communication” under the California Bar Rules and the provisions of California Business and Professions Code which regulate attorney advertising. The California rules prohibit false or deceptive “communications” which confuse, deceive or mislead the public (as do most, if not all Bar rules throughout the U.S.) This proscription applies to both affirmative statements and/or to omissions necessary to make a statement not misleading.
The opinion discusses U.S. Constitution First Amendment principles, including the fact that lawyer advertising is protected commercial speech, and truthful lawyer advertising cannot be absolutely prohibited; however, it can be subject to reasonable regulation and restrictions. In addition, communications for publication by lawyers that are primarily informational and educational have long been considered to be core political speech and protected under the First Amendment, and such speech can be restricted only under extraordinary circumstances.
The First Amendment protections apply even if the lawyer also hopes, as a partial motive, to use the informational and educational communications to increase his or her legal business; however, commercial motivation is only one factor to be considered. The key questions are whether a blog is a message or offer (1) made by or on behalf of a California attorney; (2) concerns the attorney’s availability for professional employment; and; (3) is directed to a former, present or prospective client. Since all blogs will meet factors 1 and 3, the important question is whether the blog concerns the attorney’s availability for professional employment under question 2.
The opinion discusses Cal. Formal Opinion 2012-186, which analyzes the application of California advertising rules to attorney social media posts, and found that a post which has words of offer or invitation relating to representation is a “communication’; however, if a post is only informational in nature, it is not a communication. The opinion concluded that this same analysis applies to lawyer blogs.
The opinion also discusses Cal. Formal Opinion 2001-155, which found that, even without specific words of invitation or offer, a website that included information such as a detailed listing of services, qualifications, backgrounds, and other attributes of the attorney or law firm, with their distribution to the public, could carry a “clear implication” of availability for employment, and would therefore be a “communication” subject to advertising regulation. The opinion concluded that the same analysis applies to lawyer blogs.
The opinion states that a listing of all of an attorney’s cases and outcomes, without comment, could be considered informational and not a “communication”; however, a communication with the result of a specific case or cases without providing information related to the facts and/or law giving rise to the result, would be presumed to be false, misleading or deceptive, and could be a prohibited “guarantee, warranty or prediction regarding the result of representation.” The opinion stated that even a numbered listing of “wins” might be misleading without clarification about what is considered a “win.” The use of disclaimers may (but will not necessarily) overcome a presumption of violation.
Bottom line: Lawyer blogging has become a very popular and somewhat ubiquitous form of legal communication and is often recommended to lawyers as a business strategy. This recent California Bar ethics opinion provides solid guidance to lawyers who are blogging or plan to blog to attempt to insure compliance with the Bar rules, regardless of whether the lawyer is in California or another state. If a lawyer blogs, each blog should primarily informational and educational to potentially avoid the application of Bar advertising rules (like this one).
Be careful out there.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670