MCLE Self Study

By Suzanne Burke Spencer

Spencer

From an attorney's personal use of social media to professional use of third party attorney directory websites or blogging, ethical issues abound. This article explores the parameters of an attorney's ethical duties in connection with social and other electronic media and the points at which attorneys may run afoul of them.

Is Attorney Use of Social Media Covered by Attorney Advertising Rules?

Among the ethical rules implicated by attorney use of social media are those related to attorney advertising: Rule 1-400 of the Rules of Professional Conduct and Article 9.5 of the State Bar Act (Business & Professions Code §§ 6157 to 6159.2). These provisions may apply to posts, tweets, blogs, or even online directory profiles if they fall within Rule 1-400's definition of "communication" or the "advertisement" definition in Business & Professions Code § 6157(c). These definitions are similar except that an "advertisement" must be paid for by or on behalf of an attorney. Cal. Bus. & Prof. Code § 6157(c). Because social media platform access is generally free, most social media use by an attorney is likely not an "advertisement" under the State Bar Act.

A "communication" under Rule 1-400 does not require attorney payment and is (1) any message or offer (2) made by or on behalf of an attorney (3) "concerning the availability for professional employment" of an attorney or law firm (4) "directed to any former, present, or prospective client." Rule 1-400(A). In the context of social media, the first and fourth elements of this definition are generally met. As to the second element, content authored by the attorney is obviously "by the attorney"; however, where content is generated by a third party, such as a website containing attorney directory profiles, it may not be considered "by or on behalf of" the attorney, unless the profile or listing is adopted by the attorney.

Whether the third element of the "communication" definition is met depends upon content and context, as explored in Formal Opinion 2012-186 of the State Bar's Committee on Professional Responsibility and Conduct ("COPRAC"). That opinion considered whether Rule 1-400 would apply to several specific examples of social media posts. Posts such as "Case finally over. Unanimous verdict. Celebrating tonight." and "Just published an article on wage and hour breaks. Let me know if you would like a copy." are not covered by Rule 1-400 because neither directly relates to an attorney's availability for professional employment and, with respect to the latter post's efforts to provide information to those who might be interested in it, is constitutionally protected speech. See Belli v. State Bar, 10 Cal. 3d 824 (1974). In contrast, posts such as "Another great victory in court today! My client is delighted. Who wants to be next?" or "Won a million dollar verdict. Tell your friends and check out my website." fall within Rule 1-400's definition of "communication" because both concern the lawyer's availability for professional employment.

COPRAC Formal Opinion 2016-196 considered whether four different hypothetical blogs would be governed by Rule 1-400. Attorney blogs about subjects unrelated to the practice of law, such as music, would not be governed by the Rule, even if the blog identified the attorney as an attorney (without extensive discussion of the attorney's practice or availability for employment) and linked to their professional website. Blogs that are part of an attorney's professional website would generally be subject to Rule 1-400 and the State Bar Act, because the entire website is itself subject to those requirements. A stand-alone blog by an attorney, even if discussing legal topics of interest and within the attorney's area of practice, would generally not be covered by the attorney advertising rules unless the blog "directly or implicitly expresses the attorney's availability for professional employment." Form. Opn. 2016-196 at 1.

Key to determining whether an attorney's use of social media will fall within Rule 1-400, then, is whether the message overall communicates the attorney's availability for professional employment. If so, the communication must comply with Rule 1-400's requirements.

Attorney Social Media Use Cannot Be False or Misleading

A "communication" within the definition of Rule 1-400 cannot contain any untrue statement, be false, or tend to confuse or mislead the public, and cannot omit facts necessary to make the statements made in context not misleading. Rule 1-400(D). Similar prohibitions apply to "advertisements" under the State Bar Act. Cal. Bus. & Prof. Code §§ 6157.1, 6158.

Certain types of communications are presumed to violate Rule 1-400, but the presumption is rebuttable. Such communications include guarantees, warranties, or predictions regarding results, testimonials or endorsements if not accompanied by an express disclaimer such as "this testimonial or endorsement does not constitute a guarantee, warranty, or prediction," dramatizations without a disclaimer stating "this is a dramatization," or communications seeking professional employment "for pecuniary gain" that do not contain the words "Advertisement," "Newsletter" or words of similar import. Rule 1-400, Standards (1), (2), (5), (13).

As applied to social media, some of the posts discussed above would presumptively violate Rule 1-400 to the extent they contain testimonials or endorsements, such as "My client is delighted," or include predictions or guarantees, such as "Who wants to be next," i.e. the next victorious client? If made in the context of a paid advertisement covered by the State Bar Act, guarantees or warranties are prohibited altogether. Cal. Bus. & Prof. Code § 6157.2(a).

Do Social Media Posts Need to Be Labeled an "Advertisement"?

The Rule 1-400 Standards' requirement that certain "communications" contain the word "Advertisement" or something similar can be somewhat awkward in the social media context. To avoid presumptive violation of Rule 1-400, however, a post or tweet may have to include the word "Advertisement." In the examples of social media posts described above, the post ending "Who wants to be next?" and "Tell your friends and check out my website" would require the word "Advertisement" because they seek professional employment for pecuniary gain, whereas the post ending "Call me for a free consultation" would not because the post itself does not seek employment "for pecuniary gain." COPRAC Form. Opn. 2012-186.

In a single post, including the word "Advertisement" may be relatively easy, but when an attorney blog contains multiple posts, each potentially requiring the "Advertisement" disclosure, is it enough to include the disclosure somewhere else on the blog – perhaps in a header – rather than in each individual post? There is no clear guidance in California on this point. A rule of reason is most likely to apply, however, such that the inquiry will be whether, overall, the blog, post, or other electronic communication sufficiently conveys the information necessary to avoid misleading the public. See, e.g., Cal. Bus. & Prof. Code §§ 6157.1 and 6158.

Are Third Party Directory or Rating Websites Regulated by Attorney Advertising Rules?

Several out-of-state ethics opinions have addressed the issue of whether third party directory or rating websites are covered by attorney advertising rules and, importantly, whether an attorney is responsible for third party content on these sites – such as posts concerning the attorney by clients or peers. These opinions vary. Compare S.C. Bar, Ethics Advisory Opn. 09-10 (an attorney may claim a third-party directory listing, but all information, including third party content, is subject to attorney advertising rules and the attorney is responsible for that content); and Wash. State Bar Ass'n, Advisory Opn. 201402 (2014) (accord) with Conn. Bar Ass'n, Prof'l Ethics Comm., Informal Opn. 2012-03 (Apr. 25, 2012) (client reviews on third party rating websites do not constitute attorney advertising "unless the lawyer plays a role in shaping the content of a client review or posts a comment about a review"). Although the State Bar of California's  Committee on Professional Responsibility and Conduct has one in the works (COPRAC Interim Opn. 12-0003), there is not yet a formal California ethics opinion on this subject. The interim California opinion, however, stakes out a position somewhere in between the South Carolina/Washington and Connecticut approaches.

In all of these opinions, whether a website maintained by a third party that gathers and displays attorney directory information is covered by attorney advertising rules seems to turn on whether the attorney adopts or takes some editorial control over the attorney's profile or listing. If an attorney does adopt or take some editorial control over the attorney's listing – which on its face concerns the attorney's availability for professional employment – or uses the profile to promote their practice even if not otherwise adopting the listing, the listing can likely be considered made "by or on behalf of" the attorney and therefore constitute a "communication" within Rule 1-400. If the attorney pays a fee to the third-party website for optimizing the attorney's listing or allowing access to greater features or an expanded listing, the listing would likely also be subject to regulation as an "advertisement" under the State Bar Act, including the provisions expressly governing "advertising by electronic media" (Business & Professions Code §§ 6158 to 6158.4).

If covered by either Rule 1-400 or the Business & Professions Code, the attorney would then be responsible for ensuring that the attorney's profile contains only true information and is not misleading to the public. The attorney would also have obligations with respect to any third-party content on the directory or rating website – such as unsolicited, or even solicited, client or peer endorsements. This means in California that a disclaimer is required to avoid presumptive violation of Rule 1-400. In addition, if a client review contains false information, for example, a statement that the case was settled for a specific sum that is inaccurate, the attorney would likely also have a duty to correct that inaccuracy. However, the third-party website may not permit the attorney to post a disclaimer on the attorney's profile in near proximity to the endorsement or to correct third party posts. If this is so, the attorney could be presumptively or actually violating Rule 1-400 because endorsements are being made without disclaimers or false or misleading information is being communicated on the attorney's behalf. For these reasons, attorneys should carefully review third party website rules before adopting or claiming an attorney profile to determine whether the attorney will be able to post disclaimers, correct inaccurate information posted by others, or have available other means by which the attorney can ensure compliance with Rule 1-400.

Before adopting a profile on a website that provides its own attorney ratings, attorneys should review carefully the information provided by the website concerning the criteria used for rating attorneys on that site. If the ratings are based even in part on criteria that does not relate to an attorney's professional qualifications, such as years in practice, education, disciplinary record, etc., then the rating itself may be misleading and cannot ethically be used by the attorney. See, e.g., Wash. Bar Ass'n, Advisory Opn. 201402 (2014); COPRAC Interim Opn. 12-0003.

Even if the Advertising Rules Do Not Apply, Other Ethical Rules Still Limit Attorney Use of Social Media

Outside the context of using social media to promote an attorney's practice lies Business & Professions Code § 6106 – which prohibits attorneys in any context from engaging in acts of "dishonesty." Business & Professions Code § 6068(d) similarly requires attorneys for purposes of "causes confided" to them to use "those means only as are consistent with truth." Thus, tweets, posts or blogs of any kind – whether for promoting an attorney's practice or nots – could be subject to discipline if dishonest or untrue within the meaning of these statutes.

Duties of confidentiality and loyalty also prohibit attorneys in all contexts from revealing attorney-client privileged or confidential information or from disclosing information that may injure a client or former client in any matter involved in the attorney's representation. See Rule 3-100; Cal. Bus. & Prof. Code § 6068(e); Oasis West Realty, LLC v. Goldman, 51 Cal. 4th 811, 819 (2011). This is true even if the attorney is responding to a negative online post or review by a client. See L.A. Cty Bar Ass'n, Prof'l Resp. and Ethics Comm., Opinion No. 525 (Dec. 6, 2012); BASF, Ethics Opn. 2014-1 (Jan. 2014). Rule 5-120, which prohibits an attorney who has participated or is participating in any investigation or litigation from making any statement that will have "a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter" also applies equally to electronic media, regardless of whether it is also subject to attorney advertising rules.

Attorneys also remain potentially civilly liable for their use of electronic media, just as they would for other written or oral communications. See, e.g., J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP, 247 Cal. App. 4th 87 (2016) (attorney sued for defamation based on "press release" posted on law firm website).

Suzanne Burke Spencer is the Managing Shareholder of Sall Spencer Callas & Krueger ALC, in Laguna Beach, where she focuses her practice on business litigation, legal malpractice, attorney fee disputes and legal ethics. She is the current Advisor on the State Bar of California's Standing Committee on Professional Responsibility and Conduct. The views expressed herein are her own.