MCLE Self Study

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November 2010  |  Earn one hour of MCLE Credit in Legal Ethics

Advertising in the electronic age

Maintain a thriving practice and a clean discipline record
using applicable ethical and legal advertising rules

By Wendy L. Patrick

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Patrick

MCLE Self-Assessment Test

November 2010

SAMPLE TEST QUESTIONS

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

1. A communication under Rule 1-400 includes messages regarding employment made to potential clients, as well as prior clients.


2. A solicitation does not require that a significant motive be pecuniary gain.


3. A solicitation under Rule 1-400 includes communications delivered in person or by telephone.


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For many attorneys, catchy and effective advertising is of paramount importance to a successful legal career. One look at the Google results you will get when you search for a lawyer will display the enormous time and effort expended to persuade potential clients that a particular attorney is a better choice than his or her competition. What ethical rules, however, must you keep in mind when crafting those brilliant ads? And how has the technology revolution impacted attorney advertising?

General principles

While attorneys may truthfully advertise routine legal services (Bates v. State Bar of Arizona (1977) 433 U.S. 350), such advertising is subject to California Rule of Professional Conduct 1-400 as well as potentially the rules of other states in which you market your services. Given the worldwide reach of your website or postings on social networking sites, disclaimers are critical regarding in which jurisdictions you are licensed to practice law. Lawyers must be careful not to post anything on their social networking page that could arguably constitute the practice of law in jurisdictions in which they are not licensed. Many lawyers include disclaimers to this effect right on their site, specifying the states in which they are licensed.

California Rule of Professional Conduct 1-400

Rule 1-400 defines both “communication” and “solicitation.” A communication for purposes of the rule refers to “any message or offer made by or on behalf of a member,” regarding employment, that is directed to a prior, current or potential client. Communications include the use of the attorney’s name or firm name, letterhead or business cards, advertisements directed to the general public and unsolicited correspondence (Rule 1-400(A)). A solicitation is defined as any communication regarding legal employment where “a significant motive is pecuniary gain,” which is either delivered in person or by telephone, or directed towards someone known by the sender to be represented by counsel in the matter (Rule 1-400(B)). Rule 1-400(C) prohibits making solicitations to prospective clients with whom an attorney has no prior professional or family relationship unless the solicitation is constitutionally protected.

Both communications and solicitations are subject to a list of restrictions, enumerated in Rule 1-400(D). These restrictions prohibit the use of false statements as well as deceptive, confusing or misleading information, or the omission of information necessary to place the message in context (Rule 1-400(D)(1)-(3)). They also require the advertisement to indicate its nature “clearly, expressly or by context,” and prohibit any message that is “transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats or vexatious or harassing conduct” (Rule 1-400(D)(4)-(5)). Subsection (6) prohibits attorneys from referring to themselves as “certified specialists” unless they actually have the current requisite certificate and list the agency or entity that granted such certification. Rule 1-400(D)(3) states that a communication shall not omit any fact necessary to make the statements non-misleading.

Rule 1-400(E) contains standards regarding communications that are presumptive violations of the rule. The rule currently lists 16 presumptive violations. These include communications that guarantee or predict the outcome of the representation, those that contain a testimonial about or endorsement of an attorney without an express disclaimer explaining that such does not guarantee or predict the outcome of the potential client’s case, and those targeting potential clients that the attorney knows or should know cannot exercise reasonable judgment about retaining counsel due to their current physical, emotional or mental condition (Rule 1-400(E)(1)-(3)).

The new millennium: Attorneys in cyberspace

Modern lawyers frequently use the Internet to showcase their practices. Flash movies, testimonials and instant attorney profiles are just a click away in cyberspace. Attorney websites have become more common as an increasing number of lawyers are discovering the ease with which they can communicate their services and the potential scope of their brilliant advertisements. So which regulations govern the wording and graphics of internet attorney advertising? The answer is: the same regulations that govern print advertising, and more. In California, State Bar Formal Ethics Opinion 2001-155 addressed the emerging issue of advertising online.

Online advertising: Communication or solicitation?

Formal Opinion 2001-155 concludes that attorney website information relating to employment availability qualifies as a communication under California Rule 1-400(A), but not as a solicitation under Rule 1-400(B). This is the case even if the website offers an electronic mail option facilitating direct correspondence with the attorney. As a communication, the website information must comply with the restrictions governing permissible content of communications. The applicable regulations govern not only the words on the website, but also the sounds and images.

Regarding website e-mail, in concluding that a website is not a solicitation, Formal Opinion 2001-155 described the “delivered in person or by telephone” requirement as very specific and thus intended as an easy to understand “bright line” test. The opinion further explained that “[a]lthough e-mail communication as part of website technology permits faster responses and more interaction than is possible with other forms [of] written communication, it does not create the risk that the attorney might be able to use her persuasive ability and experience to influence unduly the potential client’s thoughtful decision to hire her.” Regarding the fact that a computer e-mail uses a “telephone” line, the opinion recognized that “its resemblance to a telephone discussion ends with the mechanism of transmission.” The opinion compared e-mail to regular mail in the sense that potential clients are afforded the time to analyze and reflect upon the content of the communication.

Also covered was the fact that a website communication is not directed “to a person known to the sender to be represented by counsel in a matter which is a subject of the communication” as is prohibited by Rule 1-400(B)(2)(b), because it is not specifically directed to anyone, but instead, is available to all who choose to visit the site.

Also see COPRAC Formal Op. 2004-166 regarding a lawyer’s communication with a prospective fee-paying client in an Internet chat room for victims of mass disaster. According to the opinion, such communication is not a prohibited solicitation but an improper communication because it is delivered to a prospective client whom the attorney knows may not have the requisite emotional or mental state to make a reasonable judgment about retaining counsel. Note, however, that other states may very well view chat room technology as a “real time” communication that would fall within the definition of a solicitation. See ABA Rule 7.3(a).

The savvy lawyer also will have a disclaimer on his or her site in order to guard against false expectations of creating an attorney-client relationship. Regarding website disclaimers, California Formal Op. no. 2005-168 opined that a lawyer who provides his or her website visitors with a means by which they can communicate with the lawyer on the site may effectively disclaim owing a duty of confidentiality “only if the disclaimer is in sufficiently plain terms to defeat the visitors’ reasonable belief that the lawyer is consulting confidentially with the visitor.” The opinion goes on to specify that “[s]imply having a visitor agree that an ‘attorney-client relationship’ or ‘confidential relationship’ is not formed” would not defeat a visitor’s reasonable belief that the information transmitted to the lawyer on his or her site will be kept confidential.

Regarding an unsolicited e-mail that is not in response to an invitation on a website, despite containing what one might otherwise consider confidential information, unsolicited e-mail — just like an unsolicited detailed message on an answering machine — normally will not constitute a confidential communication between lawyer and client. See San Diego County Bar Assn. Legal Ethics Committee Opinion 2006-1 (http://www.sdcba.org/ethics/ethicsopinion06-1.htm).

And remember, even though a lawyer is advertising online, he or she is not exempt from complying with Rule 1-400(F), which requires the attorney to retain recordings or copies of their communications for two years to make available upon request to the State Bar of California. As cumbersome as this sounds, Formal Opinion 2001-155 states that this mandate applies “to each page of every version and revision of the website.”

The reach of your website

If you maintain a website, you must ask yourself: Who is looking at it and where are they? Even if your website complies with all applicable California regulations, all attorneys must be aware that their site is available to viewers worldwide. Multijurisdictional practice is increasingly common, and legal websites are accessible via a broad range of search engines. Links and “Contact Us” buttons on your home page may expose you to potential clients located in remote jurisdictions. Ethics opinions have begun to address this phenomenon and the problems encountered in attempting to regulate interstate legal business. State Bar Formal Ethics Opinion 2001-155, for example, although its main focus is online advertising, recognizes that an attorney’s website may have to comply with the regulations of other jurisdictions and might be construed as the unauthorized practice of law. California Rule of Professional Conduct 1-300(B) states that a lawyer shall not practice law in any jurisdiction where such practice would violate the regulations of legal practice in that jurisdiction.

California Rule of Professional Conduct 1-100 states the purpose and function of the rules, the definitions of terms used throughout the rules, the purpose of the discussion sections following the rules and the scope of the rules. Rule 1-100(D)(1) defines the geographic scope of the California rules as applied to California lawyers. It states that “these rules shall govern the activities of members in and outside this state, except as members lawfully practicing outside this state may be specifically required by a jurisdiction in which they are practicing to follow rules of professional conduct different from these rules.” Regarding out-of-state lawyers, 1-100(D)(2) states that “[t]hese rules shall also govern the activities of lawyers while engaged in the performance of lawyer functions in this state; but nothing contained in these rules shall be deemed to authorize the performance of such functions by such persons in this state except as otherwise permitted by law.”

ABA Model Rule of Professional Conduct 8.5 Disciplinary Authority; choice of law

Where might you be subject to discipline if you are practicing multijurisdictionally? Rule 8.5 provides in paragraph (a) that a lawyer who is practicing in a certain jurisdiction will be subject to discipline in that jurisdiction, regardless of where his or her conduct occurs. A lawyer not admitted in the specific jurisdiction will nonetheless also be subject to discipline in that jurisdiction if he or she provides or offers to provide legal services within the jurisdiction. The rule even explains that “a lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.”

Regarding choice of law, paragraph (b) explains that when the jurisdiction is exercising disciplinary authority, it will apply the rules of professional conduct in the following manner:

“(1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and (2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct.” The rule does, however, state that “a lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.”

Conclusion

Advertising remains the life source for many modern attorneys. Whether it is done through the Yellow Pages or through cyberspace, it remains a valuable way for lawyers to maintain competition and keep a successful practice. By abiding by the applicable ethical and legal rules, lawyers will be able to have a thriving practice, as well as a spotless disciplinary record.

*This article does not constitute legal advice. Please shepardize all case law before using.

• Wendy L. Patrick is a San Diego County Deputy District Attorney in the Sex Crimes and Stalking Division. She has been a chair of the San Diego County Bar Association Legal Ethics Committee for more than five years and is one of 16 members of the California State Bar Committee on Professional Responsibility and Conduct (COPRAC).




Certification

This self-study activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of one hour of legal ethics.

The State Bar of California certifies that this activity conforms to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education.

 


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