Advertising
Rule 1-400 defines "communication" as "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 . . . ." It includes "any advertisement (regardless of medium) of such member or law firm directed to the general public or any substantial portion thereof." Communications are subject to several restrictions, such as that a copy of communications must be retained for at least two years, that they cannot contain guarantees, and that if the motive is pecuniary gain, they contain the words "advertisement" or "newsletter".
Websites
COPRAC Formal Opinion number 2001-155 considered the following kind of website:
- The web site includes a description of Attorney A's law firm and its history and practice; the education, professional experience, and activities of the firm's attorneys; law-related images; and an electronic mail form allowing for communication to any attorney in the firm. The firm is in private practice. The web site's text and pictures describe and illustrate various aspects of the firm's practice, providing the kind and scope of information normally found in printed lawyer directories. The web site is found easily by using any of the several search engines available to Internet users, and it is publicly accessible to anyone in any location who has Internet access. The web site does not include live video interactivity, a bulletin board, links to other law-related web sites, or news group functions.
COPRAC considered this website to be a "communication" under Rule 1-400 even if directed to the general public at large and not towards a specific person; the site is concerned with availability for employment. It is thus subject to all of Rule 1-400's strictures. Each page of every version and revision of the website must be preserved as per Rule 1-400(F). However, it is not a solicitation, because it's not in person or over the telephone. Instead, a website is in a written form, which allowed the consumer to pause and reflect and not be pressured. It also is directed towards the public at large and not towards a represented party.
A website also has the complications of being interpreted of practicing law in other jurisdictions. To avoid this, COPRAC recommends the following:
- 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 web site
Contact forms on websites
COPRAC posed a hypothetical law firm website which had a contact form for the firm's attorneys.
Social Media
Postings on the Internet are subject to the Rules of Professional Conduct and the law concerning attorney advertising if they are a "communication" under Rule 1-400 or are an "advertisement" by electronic media within the meaning of Business and Professions Code sections 6157 to 6159.53.
COPRAC Formal Opinion number 2012-186 sets out the ethical implications of the following example posts on Facebook:
- "Case finally over. Unanimous verdict! Celebrating tonight."
- This is not a communication since it does not concern availability for professional employment.
- "Another great victory in court today! My client is delighted. Who wants to be next?"
- The first part, "another great victory in court today" is not a communication. However, the "who wants to be next?" turns it into a communication. Furthermore, it seems to be for pecuniary gain, so it requires the words "advertisement" or "newsletter". Together with the news of the victory, a guarantee of victory for the next client is also implied. The "my client is delighted" is a client testimonial without the required disclaimer. The "my client is delighted" is a client testimonial without the required disclaimer. (Belli v. State Bar (1974) 10 Cal.3d 824 [519 P.2d 575] ["An attorney, in our opinion, cannot advertise that he has performed his services so well that his clients consequently praise him].)
- "Won a million dollar verdict. Tell your friends and check out my website."
- The "tell your friends and check out my website" makes this a communication. It is implied to look at the website to hire the poster, so it's also subject to the "advertisement" notice and preservation requirements.
- "Won another personal injury case. Call me for a free consultation."
- The last sentences turns this into a communication even though it's free. Communications are not necessarily for pecuniary gain. Also, the free consultation is likely the first step in being retained.
- "Just published an article on wage and hour breaks. Let me know if you would like a copy."
- This particular example is not a communication since it does not concern availability for future employment.
Primary sources
- Bus. & Prof. Code, §§ 6157–6159.2
- Belli v. State Bar (1974) 10 Cal.3d 824 [519 P.2d 575]
- Rules Prof. Conduct, rule 1-400