The pervasiveness of blogging and social media was bound to raise ethical questions over when an attorney’s public statements—intertwined with the law—cross the line from free speech to attorney marketing and, as a result, regulated speech.
The California Bar Association recently weighed in to provide some guidance on when attorney blogging constitutes “commercial speech” and is subject to ethical restrictions. The opinion reiterates the U.S. Supreme Court authority that an economic interest alone does not suffice to transform a blog article into “commercial speech” subject to regulation by the state bar. The opinion also states that providing free legal information or informational materials over public channels similarly does not alone constitute a communication.
So where is the crossover point? As you would expect, there is a multi-factor analysis that is conducted on a case-by-case basis, but the opinion notably provides some seemingly bright line rules around three common marketing practices that will convert the blog to a regulated “communication” (as defined under Rule 1-400(A) of the Rules of Professional Conduct). Those marketing practices are the following:
- A “call to action” (as it is referred in marketing terms) that invites the reader to contact the attorney or otherwise reach out for consultation or to engage the attorney
- Nesting the blog within a firm’s professional website that includes a description of the attorney’s practice, history, education, past experience, etc.
- Multiple accounts of courtroom victories or other professional successes
The guidance is practically important for attorneys in the California bar as it provides insight and, in several cases, definitive conclusions, on whether a blog article or tweet is subject to the two-year retention requirement and prohibition on false or misleading communications under Rule 1-400 of the Rules of Professional Conduct. Nevertheless, the opinion is worth a read for all attorneys as a thoughtful analysis of the contours between free speech and regulated speech in a medium where marketing and self-expression are inescapably intertwined.
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