Tuesday, June 5, 2012
State Bar Professional Responsibility Committee Seeks Comment on Proposed Opinion on Social Media
By a MetNews Staff Writer
The State Bar Standing Committee on Professional Responsibility and Conduct is seeking public comment on a formal ethics opinion that would adapt restrictions on attorney advertising to social media.
While attorneys are permitted to advertise, the committee explained, they are statutorily prohibited from making any “false, misleading or deceptive statement” or making any “guarantee or warranty regarding the outcome of a legal matter.”
Under Proposed Formal Opinion Interim No. 10-0001 (Social Networking), an attorney would be in violation of Rule 1-400 of the Rules of Professional Conduct, the “Advertising and Solicitation” rule, if his or her “communication,” including a posting to a social media site, falls within the one of the categories of prohibited advertising.
The committee offered five hypothetical statements that a lawyer might post to his or her Facebook page:
•“Case finally over. Unanimous verdict! Celebrating tonight.”
•“Another great victory in court today! My client is delighted. Who wants to be next?”
•“Won a million dollar verdict. Tell your friends and check out my website.”
•“Won another personal injury case. Call me for a free consultation.”
•“Just published an article on wage and hour breaks. Let me know if you would like a copy.
The committee is suggesting that the first statement is not a “communication” and therefore not advertising within the meaning of the rule, but that the second, third, and fourth statements raise problems.
The second statement appears to guarantee a result, particularly because of the last sentence, the committee said. In addition, the last sentence is a solicitation of employment, without the required disclaimer informing the public that the statement is an advertisement.
The committee acknowledged that requiring an attorney to give a disclaimer every time her or she posts a comment of this type may be considered burdensome, as well as contrary to the nature of social media, but was essentially unsympathetic.
“If compliance makes the advertisement seem awkward, the solution is to change the form of advertisement so that compliance is possible,” the committee commented.
The third and fourth statements similarly solicit business and require a disclaimer, the committee said, but the last statement constitutes an offer to provide information, rather than a solicitation of employment, and is not restricted by Rule 1-400.
The State Bar said there is a July 2 deadline for comment, and requested that comments be directed to: Angela Marlaud, Office of Professional Competence, Planning and Development, State Bar of California, 180 Howard Street, San Francisco, CA 94105-1639. Comments may also be faxed to (415) 538-2116 or e-mailed to email@example.com.
A link to the proposed opinion is available at calbarjournal.com.
Copyright 2012, Metropolitan News Company