California lawyers can blog outside their law office website without worrying about lawyer advertising standards unless the blog touts the lawyer’s availability for employment, according a finalized opinion from the California state bar’s ethics committee (Cal. State Bar Standing Comm. on Prof’l Responsibility & Conduct, Formal Op. 2016-196).
Lawyers in California can use the new opinion as a road map for ensuring that their blogs aren’t subject to regulation as attorney advertising.
The new opinion is very similar to an interim version that the committee floated for public comment last year, except for extra discussion of blogs that boast about results obtained for clients. See 32 Law. Man. Prof. Conduct 105, 2/24/16.
Safe Space for Bloggers.
Like the interim version, the final opinion says that informational and educational writing by lawyers historically has been considered core or political speech, fully protected under the First Amendment and subject to restriction only under extraordinary circumstances.
According to the opinion, a blog is not a “communication” subject to California Rule of Professional Conduct 1-400 (advertising and solicitation) or an “advertisement” subject to statutory regulation in Cal. Bus. & Prof. Code Sections 6157 et seq. unless the contents at least implicitly express the attorney’s availability for employment.
“An attorney may freely write a blog on any of countless legal and non-legal subjects, and may identify himself or herself as an attorney thereon, without concern of being subject to rule 1-400, unless the blog or blog post specifically invites the reader to retain the attorney’s services or otherwise indicates the attorney’s availability for professional employment pursuant to rule 1-400(A) or Business and Professions Code section 6157,” the opinion states.
“Neither a link from the by-line to the attorney author’s professional page nor the inclusion of contact information will itself serve to transform a blog on any topic, legal or non-legal, into advertising…,” the committee said.
As in the interim opinion, the committee concluded that a lawyer’s blog integrated into a law office website qualifies as a communication subject to lawyer advertising rules to the same extent as the website itself.
Boasting About Wins.
The final opinion reflects a half-dozen or so slight wording changes from the interim opinion. The only major difference is an expanded discussion of blogging about results.
A new paragraph says that a listing of all of a lawyer’s cases and outcomes, without commentary, may be informational. But it’s presumptively misleading to blog about the ultimate result of specific cases without providing adequate information about the facts or law giving rise to the result, the opinion says.
Even a numerical quantification of “wins” can be misleading absent a description of what the attorney blogger considers a win, the committee said. “A courtroom victory is a far different thing than pleading to a lesser charge, though both arguably can be described under some circumstances as ‘wins,” the opinion says.
The opinion provides guidance about these five patterns of blogs:
▸A law firm blog containing short articles on legal issues of potential interest to the firm’s clients counts as a communication covered by Rule 1-400 because it is part of the firm’s website, even though the blog provides information and material of general public interest.
▸A criminal defense lawyer’s separate self-promotional blog—“Perry Mason? He’s Got Nothing on Me!”—qualifies as a communication subject to Rule 1-400, even though the blog doesn’t expressly invite readers to retain the lawyer. His posts describing courtroom successes presumptively would be deemed misleading because the posts don’t explain what he means by saying he has “won” 50 cases in a row.
▸A solo family lawyer’s personal blog that features short articles on family law issues without describing the lawyer’s practice or cases is not a communication subject to Rule 1-400 even though the lawyer’s purpose is to enhance his reputation and business. However, blog posts inviting readers to contact the lawyer if they have any questions about their divorce or custody cases qualify as communications subject to the advertising standards.
▸A trusts and estates lawyer’s standalone blog about the impact of court funding and judicial recall efforts on the justice system, including the probate court where he practices, isn’t a communication subject to advertising rules even though it includes a hyperlink to the lawyer’s professional web page and bases his opinions on personal experience.
▸An employment lawyer’s separate blog on jazz is not a communication subject to advertising standards even though it includes a hyperlink to his professional page, provides contact information and identifies him as an attorney.