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...
