California
Attorney Ethics Counsel

January 04, 2016

Tweeting Your Way Afoul of Attorney Advertising Rules

In Formal Opinion 2012-186, California’s Standing Committee on Professional Responsibility and Conduct addresses when and how attorney’s posts on social media may constitute attorney advertising within the requirements of California’s Rules of Professional Conduct and related governing statutes.  In general, a social media post by an attorney falls within the professional responsibility rules and standards for attorney advertising if the post is a “communication” within Rule 1-400 or “advertising by electronic media” under Article 9.5 of the State Bar Act.  In this context, a post that conveys information “concerning availability for professional employment” of an attorney is a “communication” within Rule 1-400 and must comply with the restrictions of Rule 1-400(D).  Among other things, “a communication must not be untrue or misleading (Rule 1-400(D)(1), (2) & (3)), must disclose that it is a communication (Rule 1-400(D)(4)), and must not be transmitted in a coercive or intrusive manner (Rule 1-400(D)(5)).”  That rule also includes detailed Standards expressed in a non-exclusive list of 15 types of communications that are presumptive violations.

The Opinion provides 5 examples of social media posts to illustrate the boundaries of attorney advertising:

Example Number 1: “Case finally over. Unanimous verdict! Celebrating tonight.”

• Not a communication under Rule 1-400 because “it is not a message or offer ‘concerning the availability for professional employment. . .”

Example Number 2: “Another great victory in court today! My client is delighted. Who wants to be next?”

• “Who wants to be next?” is a communication subject to Rule 1-400 because it “suggests availability for professional employment.”
• Presumed violation of the Standard 2 prohibition on client testimonials of Rule 1-400(E) because it does not include an express disclaimer.
• Presumed violation of the Standard 1 prohibition on “guarantees, warranties, or predictions regarding the result of the representation” of Rule 1-400(E), because the word “victory” in the post “could be interpreted as “asking who wants to be the next victorious client.”
• Presumed violation of Standard 5 requirement of Rule 1-400(E) that it bear the word “Advertisement,” “Newsletter,” or words to the same effect.

Example Number 3: “Won a million dollar verdict. Tell your friends to check out my website.”       

• “Tell your friends to check out my website” is a communication subject to Rule 1-400 because it “convey[s] a message or offer ‘concerning the availability of professional employment.’”
• Presumed violation of Standard 5 requirement of Rule 1-400(E) that it bear the word “Advertisement,” “Newsletter,” or words to the same effect.

Example Number 4: “Won another personal injury case. Call me for a free consultation.”

• “Call me for a free consultation” is a communication subject to Rule 1-400 because it “suggests availability for professional employment,” notwithstanding the fact that the offered availability is free, because “the rule does not require that all communications are for pecuniary gain.”

Example Number 5: “Just published an article on wage and hour breaks. Let me know if you would like a copy.”

• Not a communication under Rule 1-400 because “it is not a message or offer ‘concerning the availability for professional employment. . .”

Communications related solely to seminars or educational programs may be constitutionally protected noncommercial speech.