Twitter? Facebook? Blogs? Those words are old news to every teenager, but they may still be rather avant-garde for many California attorneys. In fact, lawyers have always been decidedly conservative when it comes to adopting new technology. Remember the 1990s, when barristers fretted endlessly over communicating with clients via email? And though some in the profession have jumped into social media with both feet, countless others have remained on the sidelines, concerned about whether communicating via social media runs afoul of State Bar ethics restrictions on attorney advertising.
Part of the problem, of course, is the glacial pace of change in the ethics rules themselves. Case in point: The State Bar of California has been working to better conform the Rules of Professional Conduct to the ABA Model Rules for ten years now. Meanwhile, communication on the Internet has exploded several times over. Social media empires have risen and fallen in the meantime. Facebook, Twitter, LinkedIn, and Yelp - none of these platforms existed ten years ago.
Regulation of Attorney Speech
In California both the Business and Professions Code and the Rules of Professional Conduct govern attorney advertising. (See Cal. Bus. & Prof. Code §§ 6157-6159.2; Cal. Rules of Prof. Conduct 1-400.) Though the California rules largely follow the ABA's Model Rules of Professional Conduct with respect to attorney advertising - and will likely follow them even closer once the California Supreme Court approves the revised rules - they also include a curious level of picayune detail. Both the rules and the code contain a number of specific restrictions on attorney communications that purport to create a "rebuttable presumption" that certain advertising techniques are misleading.
Regulating the Regulators
Rule 1-400 is very broad. For example, it covers, "any message" and declares that communications that contain "guarantees, warranties, or predictions" regarding the result of representation will presumptively be in violation of the established standards. The governing statute imposes the same presumption on a message "implying money received by or for a client in a particular case" and further states that a reference to money includes "monetary symbols or the implication of wealth." (Cal. Bus. & Prof. Code § 6158.1(c).)
It is therefore tempting to assume that these rules combine to prohibit a wide range of statements that attorneys might otherwise make via social media. But that is not true, especially when one considers the constitutional framework that underlies these restrictions.
In terms of history, many of the original restrictions predated the seminal U.S. Supreme Court ruling that the First Amendment protects attorney advertising. (See Bates v. State Bar of Arizona, 433 U.S. 350 (1977).) Since Bates the rules have been modified over the years to meet constitutional strictures. There's little question that comprehensive post-Bates advertising regulations are cleaner, tidier, and less open to a restrictive reading.
This pastiche of regulation must fit within the framework of the First Amendment's protection of commercial speech. The U.S. Supreme Court has found that although commercial speech is not entitled to the same "strict scrutiny" as noncommercial speech, it is nonetheless protected unless state regulation can survive "intermediate scrutiny." (See Central Hudson v. Public Service Comm'n of New York, 447 U.S. 557 (1980).) And though some might hold advertising in contempt, the long line of cases since Central Hudson supports the proposition that the free flow of truthful commercial information is very important to consumers making decisions in the marketplace - even when shopping for a lawyer.
The definition of "commercial speech" is quite limited. For example, the Court in Central Hudson found that commercial speech is "expression related solely to the economic interests of the speaker and its audience." (447 U.S. at 562.) The Central Hudson case involved an ad campaign waged by a utility company. The Court attempted to limit only advertising "clearly intended to promote sales" and not "institutional and informational" messages. Three years later the Court noted that commercial speech is that which "does no more than propose a commercial transaction." (Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 66 (1983).) The judicial definition of commercial speech expressed in these cases appears to encompass only a very limited form of communication - advertising.
What does this mean for the regulation of advertising by attorneys? Simply put, it means if the primary purpose of an attorney's communication is not straightforward advertising, it is fully protected by the First Amendment. A corollary is that despite expansive language, Rule 1-400 actually governs a limited universe of attorney communications.
However, even when a given message clearly constitutes advertising, regulation is unconstitutional under Central Hudson unless it fits within certain guidelines. The regulation must meet a "substantial government interest" and it must be narrowly tailored toward that end. (Central Hudson, 447 U.S. at 567.) As the Supreme Court has observed, regulators must "carefully calculate" the burdens imposed by their regulations and ensure that those burdens are justified in light of the weight of the government's objectives. (SUNY v. Fox, 492 U.S. 469, 480 (1989).)
Thus, regardless of how expansively a state bar regulation may be written, it must in fact be applied narrowly. This legal background sets the stage for a brief survey of several areas in which attorneys have concerns about the application of ethics rules to social media.
The open nature of social media provides unlimited opportunities for clients and colleagues to go online and express their opinions about attorneys. Yet how are such statements reconciled with the Rules of Professional Conduct, which limit testimonial advertising?
As mentioned earlier, one curious feature of California's attorney advertising regulations is the use of standards (in the Rules of Professional Conduct) and rebuttable presumptions (in the Business and Professions Code). Whether these standards actually impact the burden of producing evidence (as stated in section 6158.1), or the burden of proof in a discipline proceeding (as stated in Rule 1-400(E)), the key point is that the regulations purport to place the onus on an accused lawyer to demonstrate that certain ads are not misleading. For example, consider the standard adopted by the State Bar that declares presumptively misleading a communication "which contains testimonials about or endorsements of a member unless such communication also contains an express disclaimer such as 'this testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.' " (See Cal. Rules Prof. Conduct 1-400, Standard (2).)
Could this rule apply to reviews left on a website such as Avvo, which allows users to rate professionals in the medical and legal fields? Does it apply to endorsements posted on LinkedIn? Or comments passed along by attorneys via Twitter or Facebook? After all, the definition of "communication" in the proposed new rule 7.1 (replacing current rule 1-400) is quite broad, encompassing "any internet web page or web site, email, other material sent or posted by electronic transmission, or other writing describing such lawyer." (All of the proposed rules are available at ethics.calbar.ca.gov/Committees/Rules Commission/ProposedRulesofProfessionalConduct.aspx.) There are several reasons, however, why this new rule does not apply to many of the social media platforms that attorneys are concerned about.
First of all, most online reviews and endorsements are posted independently by third parties. Attorneys don't choose, pay for, or control them. Information posted to Facebook, Twitter, LinkedIn, Avvo and their kin should be viewed simply as an online version of the time-honored word-of-mouth reputation that has always accompanied the work of attorneys, and not as communications made by or on behalf of the lawyer who may be the subject of online review. In short, these messages are not communications made by a lawyer, and they don't propose a specific transaction.
Moreover, even if one assumes that sharing a positive client review via the Internet is commercial speech (and that's a big assumption), there must be evidence that a particular communication was misleading or deceptive. Though attorneys should be careful about forwarding client comments that are amenable to misinterpretation (for example: "My attorney Sally Jo got my DUI dismissed - just like she does for EVERYONE!!"), they should not fear sharing positive (and honest) comments from clients and colleagues.
Why doesn't California just require that a disclaimer be attached to a testimonial? After all, the state's burden when it comes to disclaimers may be lower than the "intermediate scrutiny" standard applied to more invasive restrictions on commercial speech. Indeed, required disclosures - particularly of facts - need only be "reasonably related" to the state's interest in preventing consumer deception. (Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985).)
However, there's a problem if a disclaimer requirement proves unworkable, which is precisely the problem with many forms of social media communication. A given website may not offer the context - or even enough space - to add a disclaimer. (For example, Twitter has a 140-character limit.) If, in practice, a disclaimer requirement means that a person cannot communicate on a popular Internet forum, the rule suddenly morphs into an outright ban rather than a simple procedural requirement. And if that occurs, the requirement fails to pass constitutional muster. Indeed, that is precisely what occurred in a Florida case when the high court rejected a Florida disclaimer rule that prohibited an accountant-attorney from describing herself as a "specialist" or as a "certified financial planner" on her business cards, letterhead, and Yellow Pages listing. (See Ibanez v. Florida Dept. of Bus. and Prof. Reg., Bd. of Accountancy, 512 U.S. 136, 146-47 (1994).)
The Business and Professions Code contains a rebuttable presumption that "a message as to the ultimate result of a specific case or cases presented out of context without adequately providing information as to the facts or law giving rise to the result" is misleading. (Cal Bus. & Prof. Code § 6158.1(a).)
Of course, just as with testimonials, the state can't constitutionally shift the burden - it still must show that an attorney's message about a given case is actually deceptive. But what of attorney-bloggers who write about the matters they handle (being mindful of client confidences, of course)? Late last year this very issue resulted in a Virginia lawyer and blogger, Horace Hunter, being disciplined for running afoul of a related ethics rule prohibiting the public discussion of a specific case without the client's consent. The case is now pending before an intermediate appellate court. (Virginia State Bar v. Hunter, No. CL 12000335-00 (Richmond City Cir. Ct.).)
Part of the confusion stems from a definitional issue: One person's blog may be another person's website, and many putative legal blogs look like nothing more than lawyer advertising. Adding to the problem is the prevalence of blogs as pages within lawyer websites, as well as large blogging platforms such as Wordpress and Typepad that blur the lines by offering both blogs and websites. Certainly, a "brag list" of courtroom wins, devoid of context or discussion, could run afoul of section 6158.1.
But blogging, as popularly understood, is both a form of commentary as well as a method of interactive discussion on matters of importance to the blogger. Viewed in that light, a blog is really no different than an article such as this one. And just as no one writing an MCLE column for California Lawyer would seriously contemplate adding an "Attorney Advertising" disclaimer, neither should bloggers, even if the matters they are commenting on are their own. For even if expression has an ancillary marketing purpose - as much blogging and writing for legal publications does - it is not subject to regulation as attorney advertising unless its primary purpose is to promote the attorney's services. Thus, provisions such as section 6158.1 must be understood to apply only to marketing websites and not to communications designed to foster commentary and discussion.
A significant constitutional framework profoundly restricts the regulation of attorney advertising. Regardless of the rules promulgated by the State Bar, the fact remains that the First Amendment trumps the regulation of attorney speech, particularly when the communication at issue is not directly aimed at proposing a commercial transaction.
That said, practicing attorneys must acknowledge the tremendous power the State Bar has to regulate the profession, and no practitioner would be blamed for choosing to interpret the rules of professional conduct expansively to avoid even the slightest chance of becoming embroiled in a disciplinary proceeding. But unless the rules are amended to reflect both constitutional limits and the realities of social media, even the slightest chill in the air would have the unfortunate impact of making it difficult to freely communicate using today's Internet platforms.
However, the good news appears to be that California has no appetite for taking the oppressive regulatory perspective seen in states such as Arizona (Bates) and Florida (Ibanez). Indeed, one should be guided by a sage observation by our nation's highest tribunal: "That our citizens have access to their civil courts is not an evil to be regretted; rather, it is an attribute of our system of justice in which we ought to take pride. The State is not entitled to interfere with that access by denying its citizens accurate information about their legal rights. Accordingly, it is not sufficient justification for the discipline imposed on appellant that his truthful and nondeceptive advertising had a tendency to or did in fact encourage others to file lawsuits." (Zauderer, 471 U.S. at 643.)
Provided that California attorneys aren't engaging in deception, they should have few concerns that a technicality will trip up their constitutionally protected right to express themselves via social media.
Josh King is general counsel and vice president of development for Avvo, Inc.