News Stream

Can blog posts sidestep traditional ethics rules governing advertising?

Increasing numbers of attorneys are using blogs to post brief articles or comments on a variety of subjects online, the State Bar of California’s professional responsibility committee says.

The blogs “run the gamut from those having nothing to do with the legal profession, to commentary on legal issues and the state of the justice system, to self-promoting descriptions of the attorney’s practice and courtroom successes, to overt advertisements for the attorney or her firm.”

But under what circumstances does blogging become subject to Rules of Professional Conduct governing attorney advertising? That was the question addressed by the State Bar’s committee in a recent opinion (Formal Opinion 2016-196)—and although the answers aren’t simple, they largely relate to whether the blog post invites readers to hire the attorney.

“Perry Mason? He’s Got Nothing on Me!” is one hypothetical title of an attorney’s blog that might fall under the reach of the rules of professional conduct, the committee says by way of example. If the attorney blogged about a successful defense and labeled himself a premier criminal defense lawyer, the blog “may qualify as a false, misleading or deceptive communication” even if it does not contain a specific invitation to retain the attorney’s services, the opinion states.

Ever since the U.S. Supreme Court, in Bates v. State Bar of Arizona (1977), declared attorney advertising to be commercial speech protected by the First Amendment, and the same court overturned the American Medical Association’s ban on advertising in 1982 (AMA v. FTC), strict rules against professional advertising in all fields have mostly been replaced with more reasonable restrictions. But with the nation’s shift away from traditional media to Internet communication, practices like blog posting have challenged past definitions of advertising as well as state licensing board regulations on the subject.

A 2013 decision by the Virginia Supreme Court (Hunter v. Virginia State Bar ex. Rel. Third District Committee) was one of the first to address the subject of blog posting when it found that an attorney’s blog that focused almost exclusively on his success in the field of criminal defense law constituted advertising within the meaning of the state’s attorney advertising rule. The U.S. Supreme Court declined to consider an appeal of the Hunter decision.

However, blog posts that are not at such an extreme can be more complicated. What if an attorney has a stand-alone blog that links to her professional webpage? Attorneys who post such blogs, even if they are on legal subjects, can avoid violating professional conduct rules, but a blog crosses the line if it expresses the attorney’s availability for professional employment directly or implicitly, the State Bar’s committee says.

For example, “Check out my website!” or “Who wants to be next?” would be considered communications subject to advertising rules, while simply having a byline with a hyperlink to a professional website and contact information would not be enough to qualify the blog as attorney advertising. However, the opinion notes, “the biographical or contact information itself may be subject” to the professional conduct rules.

The committee’s opinion notes that a hypothetical blog consisting of short articles relating to an attorney’s area of practice such as family law would generally not create professional conduct issues.

“Even though [the attorney’s] primary purpose in blogging is to demonstrate his knowledge of family law issues to his colleagues and prospective clients in order to enhance his reputation in the field and increase his business, the blog posts are informational expressions of knowledge and opinions,” not offers or messages concerning the attorney’s availability for professional employment or invitations to readers to employ the attorney’s services, or specific descriptions of the services offered.

However, a concluding statement in a blog post in which the attorney asks readers to call him if they have questions about their personal cases might raise professional responsibility issues, the opinion states.

The California State Bar emphasizes that the committee’s opinion is “not intended to chill or limit the protected speech of any lawyer, but rather to provide guidance to attorneys engaged in blogging activity as to the types of blogs or blog posts that may fall within the ambit” of advertising standards set by the Rules of Professional Conduct and state laws.