13 CAEO, ETH 2012-186

Docket Nº:ETH 2012-186
ETH 2012-186
Formal Opinion No. 2012-186
California Ethics Opinions
         ISSUE: Under what circumstances would an attorney’s postings on social media websites be subject to professional responsibility rules and standards governing attorney advertising?          THE STATE BAR OF CALIFORNIA STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT          DIGEST: Material posted by an attorney on a social media website will be subject to professional responsibility rules and standards governing attorney advertising if that material constitutes a “communication” within the meaning of rule 1-400 (Advertising and Solicitation) of the Rules of Professional Conduct of the State Bar of California; or (2) “advertising by electronic media” within the meaning of Article 9.5 (Legal Advertising) of the State Bar Act. The restrictions imposed by the professional responsibility rules and standards governing attorney advertising are not relaxed merely because such compliance might be more difficult or awkward in a social media setting.          AUTHORITIES          INTERPRETED: Rule 1-400 of the Rules of Professional Conduct of the State Bar of California.[1]          Business and Professions Code section 6106, 6151, and 6152.          Business and Professions Code sections 6157 through 6159.2.          STATEMENT OF FACTS          Attorney has a personal profile page on a social media website. Attorney regularly posts comments about both her personal life and professional practice on her personal profile page. Only individuals whom the Attorney has approved to view her personal page may view this content (in Facebook parlance, whom she has “friended”).[2]Attorney has about 500 approved contacts or “friends, ” who are a mix of personal and professional acquaintances, including some persons whom Attorney does not even know.          In the past month, Attorney has posted the following remarks on her profile page:
· “Case finally over. Unanimous verdict! Celebrating tonight.”
· “Another great victory in court today! My client is delighted. Who wants to be next?”
· “Won a million dollar verdict. Tell your friends and check out my website.”
· “Won another personal injury case. Call me for a free consultation.”
· “Just published an article on wage and hour breaks. Let me know if you would like a copy.”
         DISCUSSION          Although attorneys are permitted to advertise, any such advertisements must comply with a number of restrictions in both the Rules of Professional Conduct and the Business and Professions Code[3]For example, Business and Professions Code section 6157.1 prohibits any “false, misleading or deceptive statement” in an advertisement, while section 6157.2 prohibits including in an advertisement any “guarantee or warranty regarding the outcome of a legal matter.” Bus. & Prof. Code, §§ 6157.1 and 6157.2; see also rule 1-400, Std. 1[4] Rule 1-400 provides even more detailed requirements with which attorney advertising must comply. Specifically, rule 1-400(D) provides rules that must be followed to ensure that a communication is not false or misleading, or made in a coercive manner. Rule 1-400 also provides sixteen enumerated “Standards”[5] listing examples of communications which are presumed to be in violation of rule 1-400.          In the above hypothetical, Attorney must determine whether her postings constitute advertisements that must comply with these various advertising rules.[6]Rule 1-400, however, speaks in terms of “communications” rather than “advertisements.” Thus, it is important to look at how both terms are defined.          Business and Professions Code section 6157(c) defines “advertise” or “advertisement” as:
[A]ny communication, disseminated by television or radio, by any print medium, including, but not limited to, newspapers and billboards, or by means of a mailing directed generally to members of the public and not to a specific person, that solicits employment of legal services provided by a member, and is directed to the general public and is paid for by, or on the behalf of, an attorney.
         Bus. & Prof. Code, § 6157(c) (emphasis added). Although section 6157(c) does not refer to computer-based communications like Facebook or Twitter postings, there is little doubt that the restrictions of sections 6157.1 and 6157.2 indeed apply to computer-based communications. See, e.g., Bus. & Prof. Code, §§ 6158 (referring to “advertising by electronic media” in the context of Sections 6157.1 and 6157.2); 6157(d) (defining “electronic medium” as including “computer networks”). What may be less clear is whether a posting on Facebook or Twitter, like that described in the hypothetical, is considered “directed generally to members of the public and not to a specific person, ” as required under section 6157(c)’s definition of an advertisement. This opinion does not take a position on this point because, whether or not the hypothetical posting constitutes an “advertisement” as defined in section 6157(c), it nonetheless will be subject to the same requirements as any other advertisement by virtue of rule 1-400 – provided it is a “communication, ” as specified in section 6157(c) and rule 1-400(A).[7]          Rule 1-400, which is entitled “Advertising and Solicitation, ” applies to any “communication, ” without concerning...

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