California Joins Growing Number of States in Attempting to Tackle Emerging Lawyer Advertising Issue

HIGHLIGHTS:

  • Commentators and ethics boards have generally agreed that comments by a blogging law firm or lawyer are subject to truthfulness requirements; however, it has been less clear whether or not these blogs amount to lawyer advertising subject to applicable restrictions on such communications. California's proposed opinion is the latest attempt by a state to regulate lawyer blogs.
  • The State Bar of California Standing Committee on Professional Responsibility and Conduct has issued Proposed Opinion 12-0006 that provides guidelines as to what types of blog content would constitute advertising in California, and would thus be subject to California RPC 1-400.
  • Under the proposed opinion, where blogs contain some posts that would arguably constitute advertising appear alongside posts that would not constitute advertising, the continuous nature of the blog publication itself requires a finding that the entire blog is classified as advertising material.

There has been some confusion in recent years regarding how state disciplinary boards would – or should – treat lawyer and law firm blogs. While commentators and ethics boards have generally agreed that comments by a blogging lawyer are subject to truthfulness requirements, it has been less clear whether or not these blogs amount to lawyer advertising subject to applicable restrictions on such communications. While Proposed Opinion 12-0006 is the latest attempt to clarify regulations for lawyer blogs, other states have also faced difficulty on the proper way to address this issue. For instance, in 2013, Virginia's supreme court tackled this issue in Hunter v. Virginia State Bar, where it decided that a lawyer's blog that primarily discussed his successful outcomes constituted commercial speech subject to regulation under the state's professional conduct code for lawyers. Florida too has attempted to regulate lawyer blogs, which has resulted in a slew of litigation.  

In an attempt to clarify lawyer and law firm blog issues in California, the State Bar of California Standing Committee on Professional Responsibility and Conduct (the “committee”) has issued Proposed Opinion 12-0006. The proposed opinion provides guidelines as to what types of blog content would constitute advertising in California, and thus be subject to Rule 1-400 of the Rules of Professional Conduct of the State Bar of California. The committee notes in the proposed opinion that most blogs are maintained, at least in part, to enhance the authority, credibility and visibility of the author in a particular subject area. However, the committee also notes that just because a blog is economically motivated does not always mean that the blog is "commercial speech" that is subject to state bar advertising regulations.

The proposed opinion gives examples of four types of blogs:

  1. a stand-alone blog in which the author writes about his successful cases and extols the author, for example, as one of the state's "premier criminal defense lawyers"
  2. a blog embedded in a law firm's website in which the blog’s contents include articles written by firm lawyers on various topics of interest to the firm's clients, and every article has a statement that directs the reader to contact the author for additional information about the subject of a given post
  3. a blog authored by a solo practitioner relating to the subject area of the author's practice, which consists primarily of short articles, and in some cases posts articles that include language to contact the author with questions, but does not include information about the attorney's practice or qualifications, and does not have any overt statements about the author's availability for professional employment
  4. a blog authored by an attorney that focuses solely on a non-legal area of interest (the opinion uses the example of a jazz blog), but contains a link to the attorney's professional website

The committee starts its analysis by noting that a post in a lawyer's blog is subject to bar regulation if it is a "communication" or "advertisement" under the applicable rules. To qualify as a "communication," a message has to satisfy a three-part test. The communication must:

  1. be made by or on behalf of a California attorney
  2. concern the attorney's availability for professional employment
  3. be directed to a former, present, or prospective client

The committee concludes that because every blog post will meet the first and third parts of the test, the analysis regarding whether any particular blog post will be a "communication" or an "advertisement" will necessarily turn on whether or not it concerns the attorney's availability for professional employment.

In examining the four examples, the committee concludes that the first three would be subject to the state bar's advertising rules, while the fourth blog likely would not, so long as that blog is not used to solicit business. In making its conclusions, the committee notes that some important factors include:

  • The non-interactive nature of the blog. Blogs that do not allow comments and discourse among readers are more likely to be advertising material.
  • Inclusion of self-promotional material. Blogs that include material to promote the author are more likely to be advertising material.
  • Providing contact information. Blog posts that provide information to contact the author with any questions about the post's topic are more likely to be found to be soliciting business.
  • Encouraging lawyer contact. Blogs that encourage contact with the lawyer about law-related issues are highly likely to be regarded as subject to bar rules.

The committee also notes that in cases where a blog contains some posts that would arguably constitute advertising alongside posts that would not constitute advertising, the continuous nature of the blog publication itself requires finding that the entire blog is classified as advertising material.

The California Draft Opinion’s Problems Include Constitutional Issues

While the committee's attempt to create a bright line rule will ultimately provide clarity to some authors, the draft opinion is not without problems. First, it does little to tackle the thorny constitutional issues that can arise in discussions about attorney advertising. Second, the committee's position that a blog containing some posts that are communications or advertising and some that are not renders the entire blog to be commercial speech is likely to be hotly debated, as many lawyers will see this as too broad. Finally, the committee's proposed opinion does not contemplate a common blog scenario where, instead of containing a link with an attorney's contact information, the blog itself actually contains the attorney's contact information. On this last point, however, it seems likely that the committee would treat the inclusion of actual contact information no differently than the inclusion of a link. 

The California Standing Committee on Professional Responsibility and Conduct accepted comments from the public about the proposed opinion through March 23, 2015. Following the review of the submitted comments, the committee will publish its final opinion.