16 CAEO, ETH 2016-196

Docket Nº:ETH 2016-196
Court:California
 
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ETH 2016-196
Formal Opinion No. 2016-196
California Ethics Opinions
State Bar of California Standing Committee on Professional Responsibility and Conduct
2016
         ISSUES: Under what circumstances is "blogging" by an attorney a "communication"1 subject to the requirements and restrictions of the Rules of Professional Conduct and related provisions of the State Bar Act2 regulating attorney advertising?          DIGEST: 1. Blogging by an attorney may be a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney's availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both.          2. A blog that is an integrated part of an attorney's or law firm's professional website will be a communication subject to the rules and statutes regulating attorney advertising to the same extent as the website of which it is a part.          3. A stand-alone blog3 by an attorney, even if discussing legal topics within or outside the authoring attorney's area of practice, is not a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising unless the blog directly or implicitly expresses the attorney's availability for professional employment.          4. A stand-alone blog by an attorney on a non-legal topic is not a communication subject to the rules and statutes regulating attorney advertising, and will not become subject thereto simply because the blog contains a link to the attorney or law firm's professional website. However, extensive and/or detailed professional identification information announcing the attorney's availability for professional employment will itself be a communication subject to the rules and statutes.          AUTHORITIES INTERPRETED: Rule 1-400 of the Rules of Professional Conduct of the State Bar of California.4 Business and Professions Code sections 6157–6159.2.          STATEMENT OF FACTS          Attorney A is a small firm practitioner in criminal defense law who writes a stand-alone blog entitled "Perry Mason? He's Got Nothing on Me!" The most recent post, which is typical in content and tone to virtually all of his posts, begins, "I won another case last week. That makes 50 in a row, by my count. Once again, I was able to convince a jury that there was reasonable doubt that my client – who had tested positive for cocaine when pulled over by the local constabulary for erratic driving – was completely unaware of the two-kilo bag of the same substance in her trunk. They were absolutely mesmerized by my closing argument. Here's to the American justice system!" The blog does not explain what A regards as a "win," or what percentage of the claimed victories involved court trials. The blog does not expressly invite readers to contact Attorney A, but it does identify Attorney A as "one of California's premier criminal defense lawyers," and his name appears as a hyperlink to his law firm's professional web page.          Attorney B is a member of a law firm focusing on tax law and litigation that maintains a firm website identifying the types of services the firm provides, the background and experience of the firm's lawyers, testimonials from firm clients, and other similar information. One page of the website, indistinguishable from the other pages in layout and features, is designated as a "blog," both on the page and in the related menus linking to it. The "blog" contains a series of articles written by Attorney B and the other lawyers of the firm on changes in tax law and other topics of potential interest to the firm's clients. Each post concludes with the statement, "For more information, contact" the author of the particular post.          Attorney C is a solo practitioner in family law who writes a blog on family law issues. The blog consists primarily of short articles on topics of potential interest to other family law practitioners and divorcing couples, such as special considerations in high-asset divorces, recent legislative developments in child and spousal support laws, and an explanation of custody law when one former spouse moves to another state. Attorney C's primary purpose in blogging is to demonstrate his knowledge of family law issues, and thereby to enhance his reputation in the field and increase his business. The blog includes a hyperlink to C's professional web page, but the blog postings do not describe Attorney C's practice or qualifications, and contain no overt statements of Attorney C's availability for professional employment. However, several of the blog posts end with the statement that if the reader has "any questions about your divorce or custody case, you can contact me" at Attorney C's professional office phone number.          Attorney D is a solo practitioner in trusts and estates law who maintains a blog expressing his views on a variety of topics relating to the state of the judiciary and the importance of judicial independence, in particular his concern with the impact of reduced funding for the courts on access to justice and his opposition to judicial recall efforts that Attorney D characterizes as politically motivated. Attorney D claims no expertise in the constitutional or other legal issues related to the concept of judicial independence. Although he describes specifically the negative impact of reduced court funding on the Probate Court in which he regularly practices, and bases his opinions on personal experience, Attorney D includes no express invitation or offer to provide legal services in any of his blog posts or any other content of this website. The site does include a hyperlink to D's professional web page located at the bottom of each page.          Attorney E is an employment law attorney who maintains a blog about jazz artists, performances, and recordings. The blog is not part of the website Attorney E maintains to promote his practice, but his professional website contains a link to the blog. Similarly, the blog contains a link to Attorney E's professional website, along with contact information and a brief biographical note explaining that Attorney E is an employment law attorney.          DISCUSSION          "Blogging" has become an increasingly frequent activity of attorneys. Although the various definitions of "blog"5consistently describe it as a website or web page on which a writer, or group of writers, records observations, reflections, opinions, comments, and experiences that are personal in nature, the term now encompasses essentially any website or page consisting of brief articles or comments on any variety of subjects. Blogs written by attorneys run the gamut from those having nothing to do with the legal profession, to informational articles, to commentary on legal issues and the state of our system of justice, to self-promoting descriptions of the attorney's legal practice and courtroom successes, to overt advertisements for the attorney or her law firm.          By its nature, blogging raises First Amendment free speech issues. Prohibited for most of the 20th Century, advertising by attorneys was found to be protected commercial speech by the U.S. Supreme Court in Bates v. State Bar of Arizona (1977) 433 U.S. 350 [97 S.Ct. 2691]. Bates provides that truthful attorney advertising cannot be absolutely prohibited, but may be subject to reasonable restrictions.          In contrast, informational and educational writing by lawyers for publication, such as newspaper and magazine articles and practice guides, historically have been considered core or political speech, fully protected under the First Amendment6 and subject to restriction or limitation only under extraordinary circumstances, such as when public health and safety is at risk. This is true even though most articles on legal topics by attorneys likely are written, at least in part, to enhance the authoring attorney's professional reputation and visibility and, for attorneys in private practice, to increase business. As has been made clear by both the U.S. Supreme Court (see Bolger v. Youngs Drug Products Corp. (1983) 463 U.S. 60, 66–68 [103 S.Ct. 2875]) and the California Supreme...

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