BLOG POSTING TESTS PROFESSIONAL ETHICS RULES GOVERNING ADVERTISING

Issue: Regulating new forms of advertising

Increasing numbers of attorneys are using blogs to post brief articles or comments on a variety of subjects online, the State Bar of California’s professional responsibility committee says.

The blogs “run the gamut from those having nothing to do with the legal profession, to commentary on legal issues and the state of the justice system, to self-promoting descriptions of the attorney’s practice and courtroom successes, to overt advertisements for the attorney or her firm.”

But under what circumstances does blogging become subject to Rules of Professional Conduct governing attorney advertising? That was the question addressed by the State Bar’s committee in a recent opinion (Formal Opinion 2016-196)—and although the answers aren’t simple, they largely relate to whether the blog post invites readers to hire the attorney.

“Perry Mason? He’s Got Nothing on Me!” is one hypothetical title of an attorney’s blog that might fall under the reach of the rules of professional conduct, the committee says by way of example. If the attorney blogged about a successful defense and labeled himself a premier criminal defense lawyer, the blog “may qualify as a false, misleading or deceptive communication” even if it does not contain a specific invitation to retain the attorney’s services, the opinion states.

However, blog posts that are not at such an extreme can be more complicated. What if an attorney has a stand-alone blog that links to her professional webpage? Attorneys who post such blogs, even if they are on legal subjects, can avoid violating professional conduct rules, but a blog crosses the line if it expresses the attorney’s availability for professional employment directly or implicitly, the State Bar’s committee says.

For example, “Check out my website!” or “Who wants to be next?” would be considered communications subject to advertising rules, while simply having a byline with a hyperlink to a professional website and contact information would not be enough to qualify the blog as attorney advertising. However, the opinion notes, “the biographical or contact information itself may be subject” to the professional conduct rules.

The committee’s opinion notes that a hypothetical blog consisting of short articles relating to an attorney’s area of practice such as family law would generally not create professional conduct issues.

“Even though [the attorney’s] primary purpose in blogging is to demonstrate his knowledge of family law issues to his colleagues and prospective clients in order to enhance his reputation in the field and increase his business, the blog posts are informational expressions of knowledge and opinions,” not offers or messages concerning the attorney’s availability for professional employment or invitations to readers to employ the attorney’s services, or specific descriptions of the services offered.

However, a concluding statement in a blog post in which the attorney asks readers to call him if they have questions about their personal cases might raise professional responsibility issues, the opinion states.

The California State Bar emphasizes that the committee’s opinion is “not intended to chill or limit the protected speech of any lawyer, but rather to provide guidance to attorneys engaged in blogging activity as to the types of blogs or blog posts that may fall within the ambit” of advertising standards set by the Rules of Professional Conduct and state laws.

© 2018 Professional Licensing Report, published by ProForum, a non-profit research group, www.plrnet.org. Reprinted by permission.