MCLE Self Study

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October 2014  |  Earn one hour of MCLE Credit in Legal Ethics

The ethics of attorney blogging

By Larry Doyle

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Doyle

MCLE Self-Assessment Test

October 2014

SAMPLE TEST QUESTIONS

BELOW ARE SAMPLE QUESTIONS FROM THIS MONTH'S MCLE SELF-ASSESSMENT TEST.

1. An attorney or law firm’s professional web site is attorney advertising per se and therefore subject to the rules and statutes regulating attorney advertising.


2. An attorney or law firm’s professional web site that includes information and material of general public interest is not attorney advertising.


3. California has two sets of regulations governing attorney advertising.


To complete the test, you must pay a $25 fee online. Click the button below and follow the onscreen instructions.

Everyone seems to have a blog these days, and attorneys are no exception. What ethical issues does blogging raise for attorneys, and how can they avoid problems?

The first issue is whether a blog is subject to the rules and statutes regulating attorney advertising. The answer is potentially yes – though only if the blog post relates directly or obviously to the attorney’s availability for employment.

Attorneys have been permitted to advertise since the U.S. Supreme Court held in 1977 in Bates v. State Bar of Ariz. (1977), 433 US 350, that the First Amendment protection extended to commercial speech in Bigelow v. Virginia (1975), 421 U. S. 809, applied to attorneys. Unlike fully protected “core” or “political” speech, however, that right is subject to regulation and limitation. In general, the “States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading” (Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 US 626), but “(c)ommercial speech that is not false or deceptive and does not concern unlawful activities, however, may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest.” Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York (1980), 447 U. S. 557.

The distinction between commercial and fully protected speech is not precise. In Bolger v. Young’s Drug Products Corp., (1983), 463 US 60, the U.S. Supreme Court established a three-part test for determining commercial speech: 1). It is in an advertising format; 2). It refers to a specific product; and 3). It is economically motivated. The court qualified the test, however, by stating that not all three conditions – or even any two - had to be met for speech to be deemed commercial. The California Supreme Court established its own test in 2002 in Kasky v. Nike (2002), 119 Cal.Rptr.2d 296: (1) The speaker is a commercial entity; and 2) The communication is intended for a commercial audience; and 3) The communication contains representations of fact about the commercial entity’s products or services. The Kasky test has the advantage of greater certainty over the Bolger test, in that all three conditions must be met. The Kasky test is so sweeping, however, that almost any statement mentioning a product – such as a lawyer’s services – can qualify.

Even judged by Kasky, true blogs – i.e., websites on which an individual regularly records personal reflections, comments, and opinions, and engages in dialogue with readers who comment upon those reflections, comments and opinions – would seem to be the embodiment of fully protected political speech. However, the term “blog” has come to be applied to any Web page – often on the professional website of the attorney or law firm – containing short news articles and informational essays on topics relating to the attorney’s area of practice expertise. Depending on their content, these blogs may cross the line between commentary and advertising, and therefore potentially be subject to attorney advertising restrictions.

In California, the regulatory framework for what is and is not permitted by way of lawyer advertising is embodied in California’s Rules of Professional Conduct (particularly Rule 1-400) and statutes (Article 9.5 of Chapter 4 of the Business and Professions Code, Sections 6157 et seq.). The key provision is Rule 1-400(A), which defines the “communications” to which the rule applies as "any message or offer made by or on behalf of a member concerning the (attorney’s) availability for professional employment … directed to any former, present, or prospective client.”

Applying Rule 1-400 to an attorney’s social media postings, the State Bar’s Committee on Professional Responsibility and Conduct (COPRAC) opined in its Formal Opinion 2012-186, that, since the attorney authored the postings, they are “by” the member as stated in Rule 1-400. Further, since they are directed to the public, the postings are directed to “former, present and prospective” clients. Therefore, the key issue as to whether a post is advertising subject to regulation is whether it “concerns” the availability for professional employment of the member or her firm. Analyzing several hypothetical posts, the committee concluded that those which contained words of invitation or solicitation relating to the attorney’s practice (e.g., “My client is delighted. Who wants to be next?”) were subject to the requirements of rule 1-400, but the posts that merely exulted over the attorney’s successes (“Won a million dollar verdict!”) or offered informational materials (“Just published an article. Let me know if you would like a copy”) were not. By this reasoning, a “blog” post containing similar words of solicitation or invitation will be considered advertising.

Further, regardless of specific content, a blog on an attorney or law firm’s professional website will likely be found to be advertising, just as the website itself is advertising. In California State Bar Formal Opinion 2001-155, COPRAC concluded that an attorney’s professional website is a “communication” within the meaning of rule 1-400(A), as well as advertising subject to regulation under Business and Professions Code Section 6157, and that “this conclusion is not altered by the inclusion in the website of information and material of general public interest.” The American Bar Association’s Standing Committee on Ethics and Professional Responsibility came to a similar conclusion in its Formal Opinion 10-457. The ABA opinion makes clear that these conditions also apply to information of a general nature contained on the website, including information provided to assist the public in understanding the law such as articles, information provided in a narrative form, and FAQ’s (frequently asked questions). Although neither opinion discusses website-based blogs, the applicability is clear.

Finally, any blog that focuses on an attorney’s courtroom or professional successes can be found to be advertising, because such communications have been held to create a false impression in the reader’s eye that the attorney can achieve the same results for him or her. The rationale is clearly stated in Comment [3] to Rule 7.1 of the Model Rules of Professional Conduct, a version of which is proposed for adoption in California: “An advertisement that truthfully reports a lawyer's achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client's case.” The same concept is included in both Standards 1 and 2 of Rule 1-400 and B&P Code Section 6158.1, which contain presumptions that communications predicting or guaranteeing the results of representation are false, deceptive or misleading, and require, at minimum, a disclaimer to the effect that each case is different and that prior results are no guarantee of future success. This requirement applies to client endorsements and testimonials as well. While such statements (absent a disclaimer) presumptively violate the rule, that presumption may be overcome.

Some legal ethicists argue that blogs which include commentary on social issues, even if they promote the authoring attorney’s law practice (“mixed content speech”) should be exempt from the application of the attorney advertising rules as protected political speech, noting court decisions (e.g., Riley v. National Federation of Blind of NC, Inc. (1988), 487 US 781) that require the communication to be treated as non-commercial speech when the commercial and non-commercial elements are “inextricably intertwined.” However, the cases are also clear that adding a little political speech to an advertisement does not convert commercial speech to mixed content speech (see Board of Trustees of State Univ. of NY v. Fox (1989), 492 US 469), and it is not at all clear where the crossover occurs.

Although California has yet to produce any instructive court decisions regarding attorney blogging, a recent case decided by the Supreme Court of Virginia is illustrative. The case, Hunter v. Virginia State Bar, Ex Rel. Third District Committee (2013), 744 SE 2d 611 involved a Richmond, Virginia, criminal defense attorney who authored a blog on his firm website. The Virginia State Bar brought charges against the attorney regarding some 30 blog posts, virtually all of which (25) focused on the attorney’s courtroom victories or those of his law firm. The attorney replied that his blog was opinion on important issues concerning American justice and the court system, and therefore protected as political speech.

A majority of the Virginia Supreme Court disagreed with Hunter, ruling that his blog was commercial speech, and therefore subject to regulation as advertising. The court majority based its decision on a number of factors, including:

  • Hunter’s self-admitted partial economic motivation for the blog
  • The focus of the blog posts on cases in which Hunter achieved a favorable result, which the court deemed potentially misleading as a guarantee of outcome
  • The reference a specific product – i.e., Hunter’s skills as an attorney
  • The fact that the blog was essentially a part of Hunter’s law firm website, indistinguishable from the other pages and containing the same frame, menus and “contact us” form
  • The fact that the blog was non-interactive – i.e. it does not allow readers to engage in discourse through comments.

As a result of this finding, Hunter was directed to include a disclaimer on each blog page (preceding the blog text, and in specified font style and size, pursuant to Virginia’s rules of professional conduct) that: “Case results depend upon a variety of factors unique to each case. Case results do not guarentee or predict a similar result.”

Hunter appealed the decision to the U.S. Supreme Court, which denied certiorari. So the opportunity for a clear national standard on the issue has been lost, for the moment.

A second ethical issue raised by blogging is whether comments in a blog about current or former clients violate an attorney’s duty of confidentiality and/or loyalty.

This issue, too, was raised in the Hunter case. Many of Hunter’s blog posts identified his clients by name and provided – without the clients’ consent - details about their cases, such as the crimes with which they were charged or their failure to pass drug tests, that the clients reasonably could be expected to find “embarrassing or likely to be detrimental.”

In that case, the Virginia Supreme Court upheld the lower court finding that Hunter’s posts did not violate his duty of confidentiality to his clients because they were former, not current, clients; and the information posted about them, no matter how embarrassing or detrimental, was publicly available in court documents.

The same circumstances likely would produce a different result in California, however. California’s duty of confidentiality, as set forth in Business and Professions Code Section 6068(e) and replicated in California Rule of Professional Conduct 3-100, is far more stringent than its counterpart under the Model Rules of Professional Conduct that have been enacted in all other states, including Virginia. Section 6068(e)(1) requires an attorney to “to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” Nor does the fact, central to the Hunter decision, that the information contained in a blog concerns former, not current, clients, remove or reduce that duty of confidentiality. Rather, the duty “prohibits an attorney from disclosing facts and even allegations that might cause a client or a former client public embarrassment.” (In re Johnson (Rev. Dept. 2000), 4 Cal. State Bar Ct. Rptr. 179).

Similarly, the fact that the information contained in the blog is information that has been made available to the public through its inclusion in court filings available to the public does not seem to obviate the attorney’s duty to seek the informed consent of his or her clients before revealing particulars of their cases. California courts have found that the attorney’s duty of confidentiality exists even in circumstances where the information in question is publicly available, but not generally known – e.g., a prior felony conviction (see In re Johnson, cited above, Dixon v. State Bar (1982), 32 Cal.3d 728).

Of course, the question of whether these kinds of postings are protected speech under the First Amendment is ultimately a question of law to be decided by the courts. But the courts have been consistent that, because of their status as officers of the court, lawyers do not have all the same free speech rights as others. Although the Hunter court stated that “a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom,” California lawyers may be wise to remember Justice O’Connor’s comment in her concurring opinion in Gentile v. State Bar of Nevada (1991), 501 US 1030, 1081 that “Lawyers are officers of the court and, as such, may legitimately be subject to ethical precepts that keep them from engaging in what otherwise might be constitutionally protected speech,” and proceed with discretion.

A third issue relating to attorney blogging concerns potential pitfalls stemming from a blog’s interactivity. Interactivity – the ability of readers to comment on blogs and potentially engage in a dialogue with the blog’s owner – is an important feature that distinguishes blogs from simple online articles. It also raises the same issues regarding the provision of legal advice and formation of attorney-client relationships as any other means of website communication provided by the lawyer.

In California Formal Opinion 2003-164, COPRAC opined that whether an attorney-client relationship was formed on the basis of the attorney responding to questions from a client was based “on the totality of the circumstances.” Under most circumstances, of course, it will not be reasonable for a commentator on a blog to assume the formation of an attorney-client relationship based on the authoring attorney’s response to his or her questions in a public forum. Even so, inclusion on site of a disclaimer to this effect is a wise course.

Finally, a fourth issue that can arise as the result of the interactivity of blogs relates to the appropriate response by an attorney to negative comments posted by a former client.

As the Los Angeles County Bar Association noted in its Opinion No. 525 (20121), the attorney’s response “must be proportionate and restrained. . . (N)ot only must Attorney refrain from revealing any confidential information (because it is assumed that there has been no waiver by Former Client), and avoid saying anything that would injure Former Client in a matter related to the prior representation, he/she may say no more than is necessary to rebut the public statement made by Former Client.” As further noted by the Bar Association of San Francisco in its Opinion No. 2014-1, if the matter previously handled for the former client has not concluded, “depending on the circumstances, it may be inappropriate for the attorney to provide any substantive response in the online forum, even one that does not disclose confidential information.”

Larry Doyle is a Sacramento-based attorney, lobbyist and mediator, and a member of the State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC) and the Association of Professional Responsibility Lawyers (APRL). This article appears in the California Bar Journal as part of COPRAC’s outreach and educational efforts. The opinions expressed herein are his own.


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