Lawyer's Blog Qualifies as Advertising If Implicit Message Is ‘Available for Hire'

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Jan. 16 — A California attorney's “stand-alone” blog is subject to lawyer advertising standards if the blog signals the lawyer's availability for professional employment either directly by express invitation or implicitly by describing the lawyer's services or giving detailed summaries of case results, according to a proposed opinion from the California bar's ethics committee.

The opinion also states that a lawyer's nonlegal blog is not subject to attorney advertising rules merely because it includes a link to the lawyer's professional website; but “A blog that is a part of an attorney’s or law firm’s professional website will be subject to the rules regulating attorney advertising to the same extent as the website of which it is a part.”

The committee is asking for public comment by March 23.

Offer of Employment, or Just Info?

The committee advised that a lawyer's blog must comply with California Rule of Professional Conduct 1-400 (advertising and solicitation) if the content expresses the lawyer's availability for professional employment, either directly or indirectly.

Rule 1-400 defines covered “communications” as messages or offers directed to former, present or prospective clients “concerning the availability for professional employment” of a lawyer or law firm, the opinion notes.

Similar to the guidance the committee provided about social media posts in California Formal Ethics Op. 2012-186, 29 Law. Man. Prof. Conduct 40, the proposed opinion advises that “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.”

Four Scenarios

The committee structured its advice around four patterns of attorney blogs:

• A criminal defense lawyer's self-promotional blog—“Perry Mason? He's Got Nothing on Me!”— describing his courtroom successes without allowing interactive comments qualifies as a communication subject to Rule 1-400, even though the blog doesn't expressly invite readers to retain the lawyer.

• A law firm blog containing short articles on legal issues of potential interest to the firm's clients counts as a communication covered by Rule 1-400 because it is part of the firm's website, even though the blog provides information and material of general public interest.

• A solo family lawyer's blog that features short articles on family law issues without describing the lawyer's practice or cases would not be a communication subject to Rule 1-400 if it omitted a concluding statement inviting readers to contact the lawyer if they have any questions about their divorce or custody case.

• A lawyer's separate blog about jazz is not a communication for purposes of Rule 1-400 even though it contains a link to his professional website. 

When a lawyer's separate blog involves a nonlegal topic or a topic unrelated to his practice area, a link to the lawyer's professional pages merely identifies the lawyer and does not transform the blog into advertising, the committee said.

However, when the subject matter of a lawyer's separate blog is closely related to the lawyer's practice area, a link to the lawyer's professional or firm website would indirectly convey an invitation to employ the lawyer, the opinion states.

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