Publication Date: August 4, 2015
Publication: The Recorder
Authors: Brian Kabateck and Hrag Kouyoumjian
The world is changing—correction, the world has changed. With modern advancements in technology, attorneys have found themselves in unchartered territory. How do the established rules of attorney ethics and professional responsibility apply to modern methods and channels of attorney advertising and marketing? With the prevalence of social media mediums such as Twitter, Facebook, Instagram, Snapchat, and LinkedIn, attorneys can reach wider audiences than ever before by posting a simple message onto a platform viewable to the general public. This prevailing method of attorney advertising and marketing pushes the bounds of old, established ethics rules and, at times, requires interpretation.
Attorney ethics in California is primarily governed by the Rules of Professional Conduct of the State Bar of California and the State Bar Act (Business and Professions Code §§ 6000 et seq.). Authority is also borrowed from select statutes regarding discipline of attorneys and duties of members of the State Bar of California from alternate sources. Even though these established rules of professional conduct do not specifically mention the use of electronic mediums to convey advertisements on behalf of attorneys, they attempt to regulate such methods by generalization. Specifically, the Rules of Professional Conduct attempts to regulate the message that is being conveyed to the general public or to the potential client, rather than the specific medium or channel utilized by the attorney. The State Bar of California imprints restrictions on what it classifies and defines as attorney “communications” in the form of advertisements. Section 1-400 of the Rules of Professional Conduct defines “communication” as “any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client…” (California Rules of Professional Conduct “CRPC” §1-400(A).) Therefore, no matter what the medium, if the content of the message distributed to the public concerns the attorney’s “availability for professional employment,” it is subject to and bound by the Rules of Professional Conduct.
The State Bar Act also regulates attorney advertisement through Chapter 4 of the Business and Professions Code. Even though the State Bar Act doesn’t include or list any type of electronic media in its definition of the term “advertisement“ as it pertains to attorneys (see Business and Professions Code section 6157(c)), the Act establishes a distinct code section for what it calls “electronic media” advertising. This includes advertising by “television, radio, or computer networks.” (Buss. and Prof. Code section 6157(d).)
Even though on the surface this seems like a functional and easy method to implement, the prevalence of the different electronic and social media platforms has distorted any semblance of a clear distinction. What if an attorney sends a message to the public that disappears in 10 seconds and can never be retrieved using the app Snapchat? Or what if an attorney live-tweets on Twitter, posts a status update on Facebook, or blogs about a live event in order to lure future clients without directly targeting them? In an attempt to clarify and help interpret some scenarios involving attorney advertisement using new electronic mediums, the State Bar of California has published a diverse range of ethics opinions. Specifically, the Standing Committee on Professional Responsibility and Conduct of the State Bar of California publishes opinions regarding a specific ethical topic (i.e. Social Networking, Formal Opinion No. 2012- 186) that involves the Standing Committee dissecting and analyzing specific examples of attorney “communications” (or non-communications) subject to ethics rules. Even though these opinions do a good job of assessing certain situations of attorney advertising, these opinions are purely advisory. They are not binding on any court, any persons, any member of the State Bar, the State Bar of California including its Board of Trustees, or tribunals charged with regulatory responsibilities. Nonetheless, they guide attorneys between what is acceptable and what is not when it comes to attorney advertising, without having to change, amend, or modify the existing rules every time a new electronic platform is created.
Attorney blogs are another form of electronic media that the State Bar has an in interest in regulating. In recent years, attorney blogging has seen a significant increase in users as a result of the influx of newly licensed attorneys. Many attorney blogs are maintained through attorney websites, and as such, are likely to be considered attorney advertisements by the State Bar of California and subject to the Rules of Professional Conduct. In State Bar Formal Opinion No. 2001-155, the Standing Committee opined that legal websites are created to advertise the attorney’s legal services. Similar to other forms of attorney advertisements, the contents of an attorney’s blog are closely construed to see if the language expresses the attorney’s availability for professional employment directly or implicitly, or both. (Formal Opinion Interim No. 12-006, Attorney Blogging.) Attorneys in California also have to be aware of the fact that their blog or website’s content could reach a worldwide audience. The State Bar of California, through the Rules of Professional Conduct, maintains disciplinary power over the conduct of its attorneys in and outside of the State of California. (CRPC §1-100(D)(1).) Therefore, attorneys may be subject to California and local laws on unlawful advertisements if their message is being broadcasted on the world-wide-web.
The transformation of attorney advertising has excelled rapidly through recent years and presented a lot of changes in the way attorneys find and retain clients. Even though the State Bar of California has done its best to keep up with the evolving methods and platforms of attorney advertising, there is no real bright-line test that can be applied to all scenarios. Ultimately, attorneys have the personal responsibility to be cautious with what they post onto the realm of social and electronic media in order to ensure its compliance with the ethics rules. Attorneys need to be clear with their intentions and disclaim potential misinterpretations that may arise during their utilization of the diverse methods of advertising available in the modern era.