Attorney Blogs and Social Media Posts

Post by: Michael Kernan, Adjunct Professor, University of California Hastings

Attorney communications and solicitations in California are governed by the California’s Business and Professions Code and the California Rules of Professional Conduct (CRPC) of the State Bar.

KEY TERMS:

An “advertisement” is:

Under the Business & Prof. Code, an “Advertisement” is defined as:

“…any communication, disseminated by television or radio, by any print medium, including, but not limited to, newspapers and billboards, or by means of a mailing directed generally to members of the public and not to a specific person, that solicits employment of legal services provided by a member, and is directed to the general public and is paid for by, or on the behalf of, an attorney.[1]

A “communication” relevant to social media is:

“…any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client, including but not limited to the following:

(3) Any advertisement (regardless of medium) of such member or law firm directed to the general public or any substantial portion thereof; or

(4) Any unsolicited correspondence from a member or law firm directed to any person or entity.”[2]

A “solicitation” is:

“…any communication:

(1) Concerning the availability for professional employment of a member or a law firm in which a significant motive is pecuniary gain; and

(2) Which is:

(a) delivered in person or by telephone, or

(b) directed by any means to a person known to the sender to be represented by counsel in a matter which is a subject of the communication.”[3]

[1]Cal. Bus. & Prof. Code § 6157.

[2] CA ST RPC Rule 1-400.

[3] Cal. Bus. & Prof. Code § 6158.3 (West).

PROFESSIONAL COMMUNICATIONS IN THE NEW MILLENIUM

Websites And Social Media Pages

Electronic communications disseminated by “television, radio, or computer networks” are subject to special regulations.[1] Social networks or computer networks are not specifically defined.  As explained by a leading treatise California Practice Guide: Professional Responsibility:

“Regulation of electronic media advertising by lawyers extends to advertising on television and radio as well as computer networks. It includes use of the Internet (e.g., active and passive Web sites, online referral services, “chat room” communications and e-mail), text messaging and other forms of electronic communication.[2]

Citing the United States Supreme Court case of Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York[3] that treatise suggests that, while the state has not clearly regulated websites and pages on social media, it would be improper to regulate an attorney’s blogs or social media website that is “informational”.[4]

It explains:

“A Web site deemed predominately ‘informational’ (as opposed to commercial) would warrant greater protection under the First Amendment.”[5]

Thus, your Website or Social Media page should be primarily informational to avoid potential ethics issues.

[1] Cal. Bus. & Prof. Code. § 6157 (c) & (d).

[2]  Vapnek, Tuft, Peck and Wiener, California Practice Guide: Professional Responsibility § 2:533 (2009 ed).

[3] (1980) 447 US 557, 564–565, 100 S.Ct. 2343, 2350–2351.

[4] Id. at 2:534 and 2:534.5.

[5] Id. at 2:534 and 2:534.5.

ARE BLOGS OR SOCIAL MEDIA PAGES CONSIDERED ADVERTISEMENTS?

The California Practice Guide: Professional Responsibility states:

“Legal ‘blogs’: The extent to which legal “blogs” (or “blawgs”) are subject to lawyer advertising rules in California has not been addressed. Material posted on a lawyer’s blog could be considered a “communication” (¶ 2:76 ff.) or an “advertisement” (¶ 2:39 ff.) depending upon the context of the message (see2:6.6 ff. re “hybrid” speech)[1].

Social networking sites: Social networking sites are web-based communities of people with shared interests. Examples include MySpace, Facebook, YouTube, Twitter, Classmates Online, Windows Live Spaces, AOL Hometown, Club Penguin, LinkedIn, Legal OnRamp and LawLink.  These sites may include chats, instant messaging, video, e-mail, discussion groups, blogs and other communication forms. To the extent a lawyer makes contact with a prospective client on such a site, the advertising and solicitation rules would almost certainly apply.

PRACTICE POINTERS: If you choose to hang your shingle in cyberspace, you are engaging in electronic media advertising and must comply with the requirements of both the State Bar Act and the Rules of Professional Conduct. Creating a Web site on the Internet gives you the capability of providing text concerning legal services and related photos, graphics, video and audio. All of these are governed by the State Bar Act and the CRPC.”[2]

NOTE: The key to all of these issues is to make informational and to have the appropriate notice/disclaimer, so as not to create an advertisement on your website, blog or social media page.  The page will be more effective if you think of yourself as a journalist reporting on your particular area of law.

 [1] Id. at 2:538.

[2] Id. at  2:538-2:540.

The Effect of Globalization: ADVERTISING IN OTHER JURISDICTIONS

On advertising issues, California Practice Guide: Professional Responsibility states:

“Advertising in other jurisdictions: There is no clear answer as to which rules apply when you advertise on the Internet in other jurisdictions. A good guideline is to comply with the most stringent rules in each state where you are licensed to practice or where your firm has an office. See discussion at2:592.10 ff. Simply establishing a Web site that can be accessed by potential clients in another state should not require you to comply with that state’s rules. However, if any member of your firm is licensed in another state, that alone could trigger the need to comply with that state’s rules.”[1]

NOTE: In California, an out-of-state attorney who is not licensed to practice in this state can be subject to Cal. Bus. & Prof. Code § 6126 Unauthorized practice or attempted practice; advertising or holding out; penalties which state:

“(a) Any person advertising or holding himself or herself out as practicing or entitled to practice law or otherwise practicing law who is not an active member of the State Bar, or otherwise authorized pursuant to statute or court rule to practice law in this state at the time of doing so, is guilty of a misdemeanor punishable by up to one year in a county jail by a fine of up to one thousand dollars ($1,000), or by both that fine and imprisonment. Upon a second or subsequent conviction, the person shall be confined in a county jail for not less than 90 days, except in an unusual case where the interests of justice would be served by imposition of a lesser sentence or a fine. If the court imposes only a fine or a sentence of less than 90 days for a second or subsequent conviction under this subdivision, the court shall state the reasons for its sentencing choice on the record.”[2]

CRPC Rule 1-300 Unauthorized Practice of Law also addresses this issue as well. Rule 1-300 (B) states, “member shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.”[3]

[1] Id. at 2:541.

[2] Cal. Bus. & Prof. Code § 6126 (West).

[3] CA ST RPC Rule 1-300.

WEBSITE GUIDELINES

  1. Make It Informative

NOTE: Advertising by electronic media that depicts the result of a case or cases should disclose: “…the factual and legal circumstances that justify the result portrayed in the message, including the basis for liability and the nature of injury or damage sustained, or the advertisement must state that the result portrayed in the advertisement was dependent on the facts of that case, and that the results will differ if based on different facts.”[1]

Avoid Solicitation:

“(C) A solicitation shall not be made by or on behalf of a member or law firm to a prospective client with whom the member or law firm has no family or prior professional relationship, unless the solicitation is protected from abridgment by the Constitution of the United States or by the Constitution of the State of California. A solicitation to a former or present client in the discharge of a member’s or law firm’s professional duties is not prohibited.”[2]

The solicitation statute provides:

“(D) A communication or a solicitation (as defined herein) shall not:

(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…

(4) Fail to indicate clearly, expressly, or by context, that it is a communication or solicitation, as the case may be; or

(5) Be transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct.”[3]

[1] Id.

[2] CA ST RPC Rule 1-400

[3] Id.

2. Cover Your Bases

Clearly Label Any Communication

To avoid running afoul of Rule 1-400, clearly label your non-advertisement communication as a “newsletter.”

As noted in Rule 1-400(e), any an unlabeled communication is presumed to violate Rule 1-400:

“(5) A ‘communication,’ except professional announcements, seeking professional employment for pecuniary gain, which is transmitted by mail or equivalent means which does not bear the word ‘Advertisement,’ ‘Newsletter’ or words of similar import in 12 point print on the first page.”[1]

Add a Disclaimer

The California Practice Guide: Professional Responsibility provides a sample disclaimer to address the issues above.  It states:

DISCLAIMER:

This Web site is a public resource of general information concerning our firm. It is intended, but not promised or guaranteed, to be correct, complete, and up-to-date.  The Web site is not intended to be a source of advertising, solicitation or legal advice.  Links on the Web site are not intended to be referrals or endorsements of the linked entities.  The lawyers identified on the Web site are licensed to practice law in the following states: (IDENTIFY STATES) and nowhere else. The Firm does not intend to represent anyone desiring representations in a state where this Web site fails to comply with all laws and ethical rules of that state. [2]

[1] CA ST RPC Rule 1-400.

[2] Cal. Prac. Guide Prof. Resp. Form 2:A.

3. Avoid Too Much Interactivity

For law sites, avoid the type of interactivity by which you might be considered to be giving legal advice to people outside your jurisdiction, and avoid active pursuit of prospective clients using electronic media that resembles “live, in-person” communication.[1]

The rule is, the more interactive the communication with the prospective client, the more likely that the attorney is involved in solicitation and advertising to the individual.  Solicitation subjects them to the stringent rules and disclosures described above.

Also, it is suggested that attorneys refrain from providing legal advice over the internet unless they intend to establish an attorney-client relationship, which will trigger other regulations and procedures in addition to the ones described above.

[1] CA ST RPC 1-400.

FINAL THOUGHTS ON CONTENT

Make your page informative so that someone wants to read it instead of an ad.  First, it will be more effective.  Second, it will protect you.  The more you make your social media page informational rather than a pure solicitation, the more protection you have.  Finally, do not use terms of art that may be incorrect, or phrases that are misleading.  For example, an attorney who described himself in an online advertisement as a DUI “specialist” was subject to discipline.[1] It is unclear whether there would have been a different result if made on an informational website instead of an actual advertisement.

If you are only licensed in California, look at these rules and include the appropriate disclaimer on your site.  If you are licensed in other states, look to those states to see if they have more stringent rules.

The ABA Web site has a state by state breakdown with links to most state bar associations and state ethics rules governing lawyer advertising (www.abanet.org/barserv/stlobar.html (bar associations); www.abanet.org/legalservices/clientdevelopment/adrules. html (advertising rules)).

An ABA article titled, “Ethical Considerations for Promoting Your Practice Online,” suggests that until the laws in different jurisdictions are clearly defined and “harmonized” websites and other online advertising tools (which includes social media sites) “should provide:

  • an explanation of where the attorney is licensed to practice law
  • a description of where the attorney maintains law offices and actually practices law;
  • an explanation of any limitation on the courts in which the attorney is willing to appear; and
  • a statement that the attorney does not seek to represent anyone based solely on a visit to the attorney’s website.”[2]

[1] Id. at 2:537.5.

[2] Richard M. Goehler, Ethical Considerations for Promoting Your Practice Online, ABA Litigation News, (2010). (http://apps.americanbar.org/litigation/litigationnews/trial_skills/070710-ethics-promoting-law-practice-online.html)

Twibel Verdict Is In: Love Wins

On Friday, January 24, after three hours of deliberation, a California jury decided in favor of Courtney Love in the libel suit brought against her over a tweet by her former lawyer Rhonda Holmes. As is often the case, both sides are claiming victory. Love has been cleared of libel, but the jury determined that she hadn’t realized the information she tweeted was false. Thus, Holmes also had her name cleared and is claiming the case a victory. Read the full article “Defense verdict for Courtney Love in ‘Twibel’ case brought by her former lawyer” by Martha Neil.

Twitter Finds Itself in Hot Water Over Barista Bar Ad

Twitter’s new ad platform, @TwitterAds, recently used fake tweets by real users to promote itself. If you’ve ever used Twitter to sign in to another app, you may have noticed the list of things Twitter asks you to agree to – or maybe you haven’t. Almost invariably, you are asked to allow that app to post tweets on your behalf. What makes this instance more problematic, however, is the use of the tweeters’ likenesses as the tweets themselves were subsequently used in a blog post. Twitter immediately removed the tweets and apologized for the “confusion,” but this still raises a number of interesting legal implications. Read more in “Twitter Fakes Real Users’ Tweets” by Jeff Elder and “Twitter Creates Fake Tweets” by Jeff Blagdon.

Who Should You Be Watching on Social Media?

Forbes released its annual top 50 most powerful people on Social Media today. Don’t expect to see any celebrities in their list. The focus of their criteria is that the person has to be creating their own content and that content needs to be about social media. Hayden Shaughnessy’s article “Who Are the Top 50 Social Media Power Influencers, 2013?” also includes a link for you to rate your own “Pull.”

10 Social Media Scuffles from 2012

What would the end of the year and the start of a new one be without the seemingly never-ending lists of the top stories from the previous year. There was a lot of jockeying for position among the major players last year. Jolie O’Dell provides a list of the top ten rivalries in “Social Media Fight Club! Top Tiffs from 2012.” While the focus here is not overtly legal in most cases, the article does help to paint a picture of how the social media landscape is looking going into 2013.

Michigan Law Protects Social Media Privacy

Last week, Michigan joined the growing number of states to enforce a social media privacy law. Like similar legislation in California and Maryland, it will now be a lot harder for employers and educators to gain access to employees’ or students’ social media accounts. Governor Rick Snyder signed the legislation, which prohibits educators or employers from asking for usernames or passwords, into law on Friday. Sarah Wolfe’s article “Michigan Social Media Privacy Law Signed By Governor” has more details.

Guidelines for Cause Marketing on Social Media

The Attorney General of New York recently released guideline for cause marketing focused on social media, such as Twitter and Facebook. The list of best practices is aimed at helping both consumers and charities. In a nutshell, the promotion should be clearly described, consumers should be able to easily determine how much they are donating, if something is not apparent, it should be transparent, special efforts for transparency should be made on social media, and the public should be told how much was raised. The full set of best practices can be found here.

Does Facebook Owe You Money?

California District Judge Richard Seeborg ruled Monday that Facebook might owe you as much as $10. The ruling is the latest development in the class action suit against Facebook over Sponsored Stories. The case also marks continuing efforts to limit Facebook’s access to users’ personal information. Jessica Dye’s article “Judge Gives Initial OK to Revised Facebook Privacy Settlement” appeared on Reuters.

 

Social Media Not the Best Place to Get Investment Advice

The FBI is keeping a close watch on Twitter and Facebook, looking for instances of security fraud. The increased interest is all part of an on-going crack down on insider trading in the hedge fund industry. For more information read the article, “FBI Sees Facebook, Twitter as Breeding Ground for Security Fraud”, from Reuters.

NLRB Orders Dish to Change Social Media Policy

The National Labor Relations Board has ordered Dish Network to change its social media policy to allow employees to make disparaging or defamatory comments about their employer should they choose to. The Administrative court was particularly interested in criticizing a social media policy that could lead to union or collective activity being restrained. Eriq Gardner looks at the dispute in “Dish Network Ordered to Change Social Media Policy” in The Hollywood Reporter. Administrative Law Judge Robert Ringler’s decision can be found here.