By Michael Kernan

Today’s post is the handout from a 2011 Continuing Legal Education seminar I gave on Social Media for California attorneys.

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

KEY TERMS: 

An “advertisement” is:

“…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 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]

 Websites And Social Media Pages

Electronic communications disseminated by “television, radio, or computer networks” are subject to special regulations.[4] Social networks or computer networks are not specifically defined.  As explained in 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.[5]”

Citing the United States Supreme Court case of Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York[6] 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 blog or social media website that is “informational”.[7]

It explains:

“A Web site deemed predominately ‘informational’ (as opposed to commercial) would warrant greater protection under the First Amendment.”[8]

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

 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 (see ¶ 2:6.6 ff. re “hybrid” speech)[9].

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.”[10]

NOTE: The key to protecting yourself is to make your blog, website or social media page informational.  The more that you seem like a journalist, the more protection.  Moreover, you are more likely to build a following if your page is informational.   You are reporting on your particular area of law, and as frequently happens on the news, you are also a commentator.  Another key point is to have the appropriate notice/disclaimer, so as not to create an advertisement on your website, blog or social media page.

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 at ¶ 2:592.10 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.”[11]

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 states:

“(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.”[12]

CRPC Rule 1-300 Unauthorized Practice of Law also addresses this issue. Rule 1-300 (B) states: “a member shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.”[13]

 WEBSITE GUIDELINES

 1.1.     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.”[14]

Avoid Solicitation:

 The solicitation statute provides:

 “(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.”[15]

It further 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.”[16]

1.2.     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)(5) states:

“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.”[17]

Add a Disclaimer

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

1.3.     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.[19]

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 attorneys 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.

As noted above, make your page informative.  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 (such as the word “specialist”), or phrases that are misleading.  For example, an attorney who described himself in an online advertisement as a DUI “specialist” was subject to discipline.[20] It is unclear whether there would have been a different result if the phrase was used on an informational website instead of on 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:

(1)  an explanation of where the attorney is licensed to practice law;

(2)  a description of where the attorney maintains law offices and actually practices law;

(3)  an explanation of any limitation on the courts in which the attorney is willing to appear; and

(4)   a statement that the attorney does not seek to represent anyone based solely on a visit to the attorney’s website.”[21]

© 2011, S. Michael Kernan