For attorneys, discussing our legal work—e.g., making speeches, giving presentations, and writing articles on topics in our fields of expertise—is as natural as breathing, and almost as indispensable to our existence. The ubiquity of the Internet and the advent of blogging have combined to provide lawyers with a new outlet for this type of expression. As with any novel concept, however, surprise challenges may arise; here, the use of advertising by lawyers and the regulation of that advertising is the unexpected snag.
Advertising by lawyers is a touchy subject with a long and contentious history of tension in our legal tradition. Prohibited or discouraged for much of our nation’s history, legal advertising (as compared with informational and educational writings by attorneys) was ruled to be protected commercial speech in 1977 by the U.S. Supreme Court in Bates. In the years since, further legal wrangling has ensued; today, Rule 1-400 of the Rules of Professional Conduct governs the use of advertising by California lawyers. Recently, the Standing Committee on Professional Responsibility and Conduct of the State Bar of California issued Formal Opinion No. 2016-196, on the application of these rules to blogging.
If you are a member of the State Bar interested in blogging, or one who is already doing it, you should read the Formal Opinion carefully and make any necessary adjustments to your blog accordingly. Most legal blogs can generally avoid being classified as advertising, and thus avoid coming under the purview of these advertising limitations, if you follow these simple guidelines:
- Keep your blog separate from your website. The Formal Opinion notes that “professional websites maintained by attorneys…are attorney advertising subject to regulation.” Thus, any blog that seems to be a part of such a website (e.g., a menu item in the website) might also be considered advertising. As such, lawyers’ blogs, even if legal in content and nature, may be exempt if they are hosted separately and not as part of the attorney’s professional website.On the other hand, a lawyer’s blog that is integrated into a law firm’s website will be treated as advertising subject to regulation to the same extent as the website itself.
- Stay away from blowing your horn. A blog post that recounts your legal track record or details from a significant victory may be considered to constitute advertising, even if it also contains educational material.
The Formal Opinion notes that a blog that contains detailed descriptions of case results or implies by title or other means that the attorney is available (or particularly suitable) for professional employment may be considered advertising subject to Rule 1-400. An offer that is construed as a step toward securing potential employment, like a free consultation offer, is also considered advertising, and thus would make the blog subject to Rule 1-400.
- Carefully craft any social media posts that link to your blog. Be careful about claiming the title of “specialist” in conjunction with social media posts. The State Bar may consider that statement to be misleading advertising unless you have formally acquired certification as a specialist.Here’s a good rule of thumb
When posting on social media, “don’t blatantly advertise or convey any message of availability for employment.”
The Formal Opinion may be found here.