By Joan C. Rogers
California lawyers who use social media to boast about career milestones must comply with rules governing lawyer advertising if the postings indicate the lawyer's availability for professional employment, according to a recent opinion from the California bar's ethics committee (California State Bar Standing Comm. on Professional Responsibility and Conduct, Formal Op. 2012-186).
The opinion concludes that the advertising rules do not come into play if a lawyer's social media post merely announces a victory or recent publication without suggesting that the lawyer is in the market for new clients. But when a message expresses the lawyer's willingness to be hired, the advertising rules apply even though complying with them may be awkward, the committee made clear.
The formal opinion was released about six months after the committee circulated a draft opinion of its conclusions. See 28 Law. Man. Prof. Conduct 382.
The opinion examines how California's rules on lawyer advertising apply to a lawyer's posts on her “personal profile page” on a social media website.
The lawyer regularly posts comments about her personal life and professional practice. Only individuals whom she has approved to view her posts--or “friended,” in Facebook parlance--may view this content. But there are about 500 of these “friends,” who are a mix of personal and professional acquaintances, including some people the lawyer does not even know.
The committee focused primarily on California Rule of Professional Conduct 1-400, “Advertising and Solicitation.” The rule imposes certain requirements for lawyer advertisements and other “communications” by lawyers, and it is accompanied by a list of “Standards” describing categories of communications that presumptively violate the rule.
Although Rule 1-400 does not expressly mention electronic communications, the committee said it had little doubt that the rule extends to lawyers' Facebook or Twitter postings when they meet the definition of a communication covered by the rule.
The rule defines a “communication” as “any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client….”
In light of this definition, the committee concluded that an attorney's posts about her practice on a social media website must comply with Rule 1-400 if their content concerns her availability for professional employment.
The committee also noted that a lawyer's social media posts will be subject to Article 9.5 of the State Bar Act, which addresses legal advertising, when the postings qualify as a “communication” under Cal. Bus. & Prof. Code §6157(c).
While saying that Section 6157 clearly applies to computer based-communications, the committee found it less clear whether a posting on Facebook or Twitter is “directed generally to members of the public and not to a specific person” so as to come within the statutory definition of a “communication.” The opinion does not take a position on that issue because Rule 1-400 and Section 6157 impose essentially the same requirements, the committee explained.
Evaluating the particular posts at issue, the committee found that Rule 1-400 does not apply to this boast: “Case finally over. Unanimous verdict! Celebrating tonight.” This statement is not a communication under the rule because it is not a message or offer about the lawyer's availability for employment, the panel found.
“Attorney status postings that simply announce recent victories without an accompanying offer about the availability for professional employment generally will not qualify as a communication,” the opinion states.
The committee also concluded that Rule 1-400 does not apply to this post: “Just published an article on wage and hour breaks. Let me know if you would like a copy.” This statement merely relays information about an article the lawyer has published along with an offer to provide copies, it explained.
On the other hand, the committee advised that Rule 1-400 applies to these three postings because they concern the lawyer's availability for employment:
• “Another great victory in court today! My client is delighted. Who wants to be next?” The phrase “Who wants to be next?” suggests that the lawyer is available to be hired, according to the committee.
• “Won a million dollar verdict. Tell your friends to check out my website.” This message asks readers to tell others to look at her website so that they may consider hiring her, the panel found.
• “Won another personal injury case. Call me for a free consultation.” This post indicates that the lawyer is available to be hired, because an offer of a free consultation is a step toward securing potential employment, the committee explained.
Having concluded that Rule 1-400 applies to several of the lawyer's social media posts, the committee offered guidance on complying with the rule.
The opinion points out that under Standard 5, communications covered by Rule 1-400 must bear the word “Advertisement,” “Newsletter,” or words to that effect, in 12-point type. Lawyers have to comply with this requirement even if it is burdensome and undercuts the conversational, impromptu nature of a social media status posting, the panel said.
“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,” the opinion states.
The opinion also notes that for any communication covered by Rule 1-400, the lawyer must retain a copy for two years. If the social media website does not archive postings automatically, the lawyer will need to preserve the postings by a method such as printing or saving a screenshot, the committee advised.
The committee identified particular problems with the post “Another great victory in court today! My client is delighted. Who wants to be next?” This post, it said, violates the prohibition against client testimonials in Rule 1-400(E) unless it includes a disclaimer, and also presumptively violates Rule 1-400 because it makes a guarantee by predicting that the next client will be victorious too.
Full text at http://ethics.calbar.ca.gov/Portals/9/documents/Opinions/CAL%202012-186%20%2812-21-12%29.pdf.
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