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special / Legal Ethics

Bar unleashes attorney blogging opinion

Fresh on the heels of its prior opinion discussing confidentiality (Formal Opinion 2016-195), the State Bar of California's Standing Committee on Professional Responsibility and Conduct closed out 2016 with an ethics opinion analyzing the applicability of advertising rules to attorney blogging, California Formal Opinion Number 2016-196.

The new opinion inquires under what circumstances is blogging by an attorney considered a "communication" under California Rules of Professional Conduct Rule 1-400 (CRPC Rule 1-400) and the related provisions of the State Bar Act (Business and Professions Code Article 9.5, Sections 6157-6159.2) regulating attorney advertising. The advertising rules prohibit false or deceptive "communications" in content or presentation which tend to confuse, deceive or mislead the public. This prohibition applies to both affirmative statements and/or to omissions necessary to make a statement not misleading. Rule 1-400 also contain standards which describe types of "communications" that are presumed deceptive or misleading, and thus presumptively prohibited.

The opinion begins with a discussion of core constitutional principles. Attorney advertising is protected commercial speech, whereby truthful attorney advertising cannot be absolutely prohibited, but can be subject to reasonable restrictions. Bates v. State Bar of Arizona, 433 U.S. 350 (1977). On the other hand, informational and educational writing by lawyers for publication has been considered to be core political speech, protected under the First Amendment and subject to restriction only under extraordinary circumstances, such as risk to health and safety. First Amendment protections apply to informational and educational writing even though an attorney likely undertakes the writing with the intent, at least in part, of enhancing the attorney's professional reputation and visibility, and possibly to increase business.

Nevertheless, the opinion states that a blog does not automatically become commercial speech subject to regulation simply because it is may be commercially motivated. Commercial motivation is only one factor to be considered. The opinion advises that the key question in determining whether a blog is subject to regulation under the advertising rules is whether a blog post 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. Rule 1-400(A). Since all blog posts by California attorneys will per se meet factors 1 and 3, the key question is factor 2, namely whether the post concerns the attorney's availability for professional employment.

The opinion first reviewed Cal. Formal Opinion 2012-186, which analyzed the applicability of the advertising rules to attorney social media posts, and had concluded that where the post contained words of offer or invitation relating to representation, it was a "communication," but where the post was simply informational in nature, it was not. The opinion opined that the same analytical framework applied to blog posts.

Turning next to Cal. Formal Opinion 2001-155, which had stated 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 thus, constitute a "communication" subject to regulation. Again, the opinion opined that the same analytical framework applied to blog posts.

The opinion then noted that while recitations of all of an attorney's cases and outcomes, without commentary, could be informational and not a "communication," a message as to ultimate result of a specific case or cases presented out of context without providing information as to the facts or law giving rise to the result, is presumed to be false, misleading or deceptive, and could be a presumed prohibited guarantee, warranty or prediction regarding the result of representation. Bus. and Prof. Code Section 6158.1(a); Rule 1-400 Standard (1). (Practitioners would be wise to also read Formal Opinion 2016-195 to review the parameters of what, if any, of a specific case's facts can be ethically discussed without violating the duty of confidentiality.) The opinion stated that even numerical quantification of "wins" might be misleading without clarification about what is considered a "win." The use of disclaimers may, but may not necessarily, overcome a presumption of violation.

After reviewing the applicable law, the opinion reviewed five hypotheticals to analyze whether each was a "communication" subject to the advertising rules:

Example A: A stand-alone blog with "extreme" examples of self-promotional posts constitutes a "communication" subject to Rule 1-400 notwithstanding the lack of specific words of invitation to retain attorney's services. The blog described attorney's services, and made specific representation about the quality of those services, implicitly expressing Attorney's availability for professional employment and invited readers to employ him. Disclosures required by the advertising rules need to be conspicuously displayed on the blog post itself.

Example B: A blog that is a part of a professional law firm website is a "communication" subject to Rule 1-400, even if it contains information and material of general public interest. Because the opinion found that the blog clearly indicated that it was a communication by context, "no additional disclosure of that fact is required."

Example C: A stand-alone blog in Attorney's practice area that consisted primarily of short articles on topics of potential interest to others in the same practice area and potential clients is not a "communication." Attorney's primary purpose is to demonstrate his knowledge and thereby enhance his reputation in the field and increase his business. His blog hyperlinks to his professional webpage, but the blog postings do not describe Attorney's practice or qualifications, and contain no overt statements of availability for employment. Some posts conclude with an invitation to contact attorney with questions about "your divorce or custody case." This blog is not a "communication" subject to Rule 1-400, with the exception of posts with invitations to contact the attorney with questions about a reader's case. Disclosures, if required, should be proximate to the subject posts, explaining that some posts listed constitute attorney advertising.

Example D: A stand-alone blog on legal topics outside of Attorney's practice areas, even if linked to a professional website, are not posts concerning Attorney's availability for professional employment and thus, not a "communication" subject to Rule 1-400.

Example E: A non-legal blog, even if linked to a professional webpage, is not a "communication" subject to Rule 1-400. A link to a professional page or contact information, standing alone, does not transform a blog into a "communication."

Blogging is a popular form of legal communication and often recommended as a business development strategy. Attorneys should be knowledgeable about the advertising rules, and make adjustments as necessary to make their blogs compliant.

#30


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