December 10, 2015
When is an Attorney’s Blog Considered Advertising under Legal Ethics Rules?
The Standing Committee on Professional Responsibility of the State Bar of California earlier this year issued a detailed advisory Opinion regarding when an attorney’s blog should be subject to the advertising requirements of the Rules of Professional Conduct and the State Bar Act.
Formal Opinion Interim 12-0006 provides that attorney blogs are subject to attorney advertising rules if the blog expresses availability for professional employment, or if the blog is part of the law firm’s professional website. By contrast, a non-legal blog by an attorney is not necessarily subject to the advertising rules just because it is written by an attorney, or just because it links to an attorney’s professional website. The Opinion first analyzes whether attorney blogs are a “communication” under Rule 1-400(A), a three-part test: (1) is the message is made by or on behalf of a California attorney?; (2) is the message concerns the attorney’s availability for professional employment?; and (3) is the message is directed to former, present, or prospective client(s)? The Opinion concludes that all attorney blogs meet parts 1 and 3 of this test, so the relevant issue is whether the blog post concerns “the availability for professional employment” of the attorney or the attorney’s firm.
The Opinion outlines a broad interpretation, noting its prior analysis that “[the listing of services, qualifications, background, and other attributes of the attorney or law firm, and their distribution to the public, carries with it the clear implication of availability for employment.” Similarly, posts that “detail an attorney’s courtroom victories or other professional successes” will also constitute a communication. While “[g]eneral expressions of excitement or exultation over a single result” would not constitute a communication, multiple posts containing this type of information probably would.
In general, “a blog post which contains an offer to the reader to engage the attorney, or is a step towards securing potential employment such as offering a free consultation, is a ‘communication’ within the meaning of Rule 1-400 and subject to the rule’s requirements and conditions, while those which provide or offer only information or informational materials are not.” Another relevant factor is whether the blog invites comments on individual posts: if the blog is non-interactive, it is more likely to be viewed as attorney advertising.
The Opinion analyzes four factual scenarios on a spectrum. On one end of the spectrum, an attorney’s blog consists almost exclusively of details of courtroom successes, does not permit readers to comment, but does identify the attorney as a “premiere criminal defense” attorney and links to the attorney’s law firm professional page. This would constitute a communication and an advertisement, and presumptively violates applicable rules. On the other end of the spectrum, an attorney publishes a blog about “jazz artists, performances and recordings.” The non-legal stand-alone blog links to the attorney’s professional page, and the law firm website links to the blog. This would not constitute a communication.