September 2013 | Earn one hour of MCLE Credit in Legal Ethics
By Larry Doyle
Doyle
September 2013
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Attorneys today are faced with an abundance of online options for promoting themselves and their law practice through directory or social media web sites. Many of these sites give attorneys the ability to receive and post endorsements and recommendations from colleagues and clients.
A large and popular professional networking site, LinkedIn, recently added an “endorsement” feature which significantly ups the ante by encouraging members to publicly acknowledge the skills and expertise in their connections’ biographical profiles, and even suggest new skills, which the member can accept or reject. LinkedIn members are invited to endorse their connections for five specific “skills and expertise” each time they visit the connection’s profile, and are given the opportunity to endorse at least four of their connections every time they call up their own profile. These endorsements can be made even in the absence of the actual expertise being endorsed.
Other companies, such as Avvo.com and Martindale-Hubbell, offer online directories of attorneys, which provide opportunities for both clients and peers to post recommendations of the attorneys. Still others, like Yelp, provide the opportunity for clients to review and rate attorneys in the same way they review and rate restaurants and auto repair shops.
What ethical issues do these online recommendations and endorsements pose for California attorneys?
The question of what constraints may be placed on the advertising materials attorneys place before the public has been a knotty issue ever the U.S. Supreme Court restored an attorney’s right to advertise (after nearly 70 years of prohibition) with its decision in Bates v. State Bar of Arizona (1977), 433 US 350. Bates held that attorney advertising was “commercial speech” which was protected under the First Amendment so long as it was truthful, but also subject to regulation and control by public agencies. Noting that “(a)dvertising that is false, deceptive, or misleading of course is subject to restraint.” The Bates court noted:
In fact, because the public lacks sophistication concerning legal services, misstatements that might be overlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising. For example, advertising claims as to the quality of services—a matter we do not address today—are not susceptible of measurement or verification; accordingly, such claims may be so likely to be misleading as to warrant restriction. Bates at 383-384)
In the years since Bates, the courts and various state bars – with occasional further guidance from the Supreme Court – have struggled to clarify what attorney advertising may be prohibited, what is permitted in all cases, and what is conditionally permitted – i.e., permitted subject to disclaimer or explanation. In Central Hudson Gas & Electric Corp. v. Public Service Commission of NY (1980), 447 U.S. 557 (subsequently modified by Board of Trustees of State University of New York v. Fox (1989), 492 U.S. 469), the U.S. Supreme Court set up a four-part test for determining whether regulatory attempts to control commercial speech were valid. In In re R.M.J. (1982), 455 U.S. 191, the court held that a state may not completely prohibit attorneys from accurately listing their areas of practice, but may require specified disclosure language to avoid the possibility of misleading the public. And in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio (1985), 4471 U.S. 626, the court applied the Central Hudson holding to attorney advertising.
The U.S. Supreme Court case which most directly relates to the issue of testimonials or endorsements, however, is Peel v. Attorney Registration & Disciplinary Commission (1990), 496 U.S. 91, in which a plurality of a divided court held that an attorney’s designation of himself on his stationary as a “Trial Specialist” certified by a national legal organization was objectively verifiable, and thus could not be prohibited. Quoting Bates, the Peel Court held that "If the naiveté of the public will cause advertising by attorneys to be misleading, then it is the bar's role to assure that the populace is sufficiently informed as to enable it to place advertising in its proper perspective." On this basis, the court held that “(t)o the extent that potentially misleading statements of private certification or specialization could confuse consumers, a State might consider screening certifying organizations or requiring a disclaimer about the certifying organization or the standards of a specialty.”
Against this backdrop, every state in the nation has adopted rules regulating attorney advertising. Except for California, all the rules adopted in the various states are based on the Model Rules of Professional Conduct (“Model Rules”) promulgated by the American Bar Association (ABA). The Model Rules do not contain specific prohibitions against or restrictions on testimonials or endorsements, except for a prohibition against paying for a recommendation or endorsement (Comment [5] to Rule 7.2). Nonetheless, Comment [3] to Model Rule 7.1 clearly articulates the concerns regarding the use of endorsements or testimonials, and the recommended solution:
[3] 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 inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public.
The issue of endorsements and testimonials is of sufficient concern to some states that they have gone well beyond the Model Rules in terms of prohibitions and restrictions. For example, Arkansas’s Rule 7.1(d) states flatly that a “communication is false or misleading if it contains a testimonial or endorsement,” a sentiment echoed in the rules of South Carolina and Wyoming. Other states come close to outright prohibitions, but permit exceptions in limited circumstances.
California has its own rules governing attorney advertising set forth in California Rule of Professional Conduct (“CRPC”) Rule 1-400, and Article 9.5 of the State Bar Act (Business and Professions Code Sections 6157-6159.2). CRPC Rule 1-400(D) provides that “communications,” as defined, shall not, among other things: (1) Contain any untrue statement; or (2) Contain any matter, or present or arrange any matter in a manner or format which is false, deceptive, or which tends to confuse, deceive, or mislead the public; or (3) Omit to state any fact necessary to make the statements made, in the light of circumstances under which they are made, not misleading to the public.
In addition, CRPC Rule 1-400 contains 15 “Standards” which set forth types of “communications” that presumptively violate the rule, though the presumption may be overcome. The first two categories of presumptive violation are:
Thus, the threshold question is whether an online profile is a “communication” within the meaning of CRPC Rule 1-400. Surprisingly, at least as it pertains to some directory sites, the answer could be no depending on the circumstances. Unlike the ABA’s Model Rule 7.1, California’s Rule 1-400(A) provides a specific and limiting definition of what constitutes a “communication,” which must be:
Every directory profile is, by definition, a message – as is every endorsement or testimonial contained on that profile. Further a profile contained on the World Wide Web and viewable by potentially the entire computerized world can be said to be directed to “any former, present, or prospective client” – assuming the attorney has or wants clients.
It is not a given, however, that an online directory listing will be “by or on behalf” of the attorney being profiled. In the case of LinkedIn, an attorney’s profile clearly is “by or on behalf of” the member because one cannot become a member of LinkedIn without affirmatively opening an account. However, third-party directory listings of attorneys are cropping up all the time, often without the knowledge of the attorneys being profiled. Many of these directory listings simply replicate the information contained on other web sites – including the information provided by the attorney to the State Bar of California as a condition of licensure and posted on the State Bar’s official website. Certainly if the attorney is unaware of the existence of a directory site or otherwise takes no action to claim or maintain the listing, it would be hard to find that such listing is “by or on behalf of a member.”
On the other hand, if the attorney plays an active role in creating or maintaining the profile or listing, i.e. by adding information or pictures, or inviting colleagues and clients to participate, the profile or listing may be deemed to be “by or on behalf of” the attorney. Just where that point of “by or on behalf of a member” occurs, triggering the ethical advertising rules, is subject to debate, and ethics opinions on the matter so far have been split (compare, e.g., South Carolina State Bar Ethics Committee Ethics Advisory Opinion 09-10 and Connecticut Bar Association Professional Ethics Committee Informal Opinion 2012-03).
Finally, in order to be classified as a “communication” under CRPC Rule 1-400, the message must be “concerning the availability for professional employment of a member or a law firm.” The State Bar’s Committee on Professional Responsibility and Conduct recently issued Formal Opinion 2012-186, which describes circumstances under which an attorney’s postings on social media websites meet this standard. Most of those circumstances involve an attorney’s direct or indirect invitation to contact him or her regarding the provision of legal services.
However, CRPC Rule 1-400(A) further provides that “communications” include, but are not limited to, among other things: (1) Any use of firm name, trade name, fictitious name, or other professional designation of such member or law firm; or (2) Any stationery, letterhead, business card, sign, brochure, or other comparable written material describing such member, law firm, or lawyers. Given that the issue in Peel was the use of a designation on a firm’s letterhead, it is reasonable to conclude that actively created/maintained written materials describing a lawyer or law firm – including an online profile – are sufficiently promotional in nature to be subject to Rule 1-400’s requirements of truthfulness, and should be treated as such.
Due to the concern over “advertising claims as to the quality of services (which) … are not susceptible of measurement or verification” stretching back to Bates, it is not surprising that where CRPC Rule 1-400 is found to apply, under Standard (2), even a truthful endorsement is presumed to be false, deceptive, confusing, deceiving or misleading to the public, unless “such communication also contains an express disclaimer such as ‘this testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.’" Consequently, if an attorney has ownership or control of an online profile, either the disclaimer should be added to overcome the presumption of falseness and deception, or the endorsement(s) should be removed.
If the attorney does not, in fact, possess the skills or expertise listed, on the other hand, the endorsement should be removed or suppressed if the attorney has the ability to do so. A knowingly untrue statement may independently violate Business and Professions Code §6068(d)’s requirement that an attorney employ “those means only as are consistent with truth…” And in extreme cases, knowing untruthfulness could be charged as a violation of Business and Professions Code §6106, which holds that “The commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.” The message of the authorities is clear: If the testimonial or endorsement is false or misleading – e.g., if you are being endorsed for a skill or expertise you do not possess – no disclaimer can make it right. Such endorsements should be removed.
As noted above, there is a statutory counterpart to CRPC Rule 1-400, Article 9.5 of the State Bar Act, encompassing sections 6157-6159.2. Article 9.5 was intended to respond to what the California Legislature perceived in the 1990’s as the insufficiencies of CRPC Rule 1-400 in addressing the “electronic media attorney advertising” (primarily television), and originally included a private right of action for enforcement. When that provision was removed late in the legislative process, however, the new law became indistinguishable from 1-400 in many – though not all – respects. In particular, persons accused of violating the provisions of the article are given 21 days after a complaint is filed to withdraw the offending ad while the State Bar decides to take action, and a 72-hour right to cure without penalty if the bar does take action. This condition renders much of the article functionally meaningless with regard to internet advertising.
Larry Doyle is the former Chief Legislative Counsel of the State Bar of California and currently a solo practitioner and lobbyist from Sacramento. His practice focuses on legal research, lawyer ethics, and mediation. He is a member of the State Bar of California’s Standing Committee on Professional Responsibility and Conduct (COPRAC), and the Association of Professional Responsibility Lawyers. This article appears in the California Bar Journal as part of COPRAC’s outreach and educational efforts.The opinions expressed herein are his own.
