June 2018 Ethically Speaking - A Primer on the Ethics of Legal Advertising

by Frederick L. Wilks and Samuel Z. Hyams

Some law firms rely heavily on professional networks and repeat business from clients with recurring legal needs, while others must focus on messaging to a wider audience. Many lawyers do not fully appreciate the extent to which their advertising efforts are subject to regulation and ethical rules. Thus, we offer the following primer on ethical constraints applicable to lawyer advertising under California law.

The U.S. Supreme Court has held that lawyer advertising is protected commercial speech, but may be subject to reasonable restrictions. See Bates v. State Bar of Arizona, 433 U.S. 350, 383-84 (1977). While it may seem obvious that advertising may not mislead, lawyers must remain mindful that information that is not considered misleading in other advertising contexts may be misleading in the legal context. See Edenfield v. Fane, 507 U.S. 761, 774-76 (1993).

Sources of Legal Advertising Regulation in California

In California, the two primary sources of regulation for legal advertising are the California Rules of Professional Conduct and the State Bar Act. The State Bar Act distinguishes between advertising (communications directed generally to members of the public and paid for by the attorney) and solicitation (communications directed to a specific person by runners or cappers). See Cal. Bus. & Prof. Code §§ 6151-6159.2 (West 2018). California Rule of Professional Conduct 1-400 (Rule 1-400), on the other hand, governs both advertising and solicitation and applies to a broader array of lawyer marketing and advertising. This article focuses on legal advertising, not solicitation.

Restrictions and Requirements Concerning Legal Advertising

The restrictions on legal advertising are not necessarily designed to promote dignified or effective advertising. The guiding principle is to avoid misleading the public. The State Bar Act provides that “[n]o advertisement shall contain any false, misleading, or deceptive statement or omit to state any fact necessary to make the statements made, in light of circumstances under which they are made, not false, misleading, or deceptive.” Cal. Bus. & Prof. Code § 6157.1. Similarly, Rule 1-400(D) prohibits communications that are false, deceptive, or which tend to confuse, deceive, or mislead the public.

Rule 1-400(D) includes additional, more specific, restrictions. For instance, a communication must clearly, expressly, or by context, indicate that it is a “communication,” that is, a message or offer made concerning the attorney’s availability for professional employment. Rule 1-400(A) & (D)(4). A lawyer may advertise specialized areas of practice, but may not purport to be a “certified specialist” unless the lawyer holds a certificate issued by the Board of Legal Specialization or another entity accredited by the State Bar. Rule 1-400(D)(6).

The State Bar Act also prohibits specific types of communications, such as any guarantee, warranty, or suggestion that the lawyer can obtain quick settlements. Cal. Bus. & Prof. Code § 6157.2(a), (b). It restricts advertising methods such as impersonations and dramatizations. Id. § 6157.2(c). An advertisement stating the lawyer will represent the client on a contingency fee basis is also prohibited if it fails to mention that the client will be responsible for costs. Id.

If an advertisement in electronic media conveys a result in a specific case, the advertisement must state either: (1) the factual and legal circumstances that justify the result, including the basis for liability and the nature of injury or damage sustained, or (2) the result was dependent on the facts of the case, and results will differ. Id. § 6158.3.

Notably, both Rule 1-400 and the State Bar Act require a lawyer to retain copies of advertisements. See Rule 1-400(F) (communications covered by the Rule must be retained for two years); Cal. Bus. & Prof. Code § 6159.1 (advertisements must be retained for one year) .

Presumed Violations

Certain types of communications are subject to a rebuttable presumption that they are false, misleading, or deceptive. For instance, the State Bar Act establishes a presumptive violation for advertisements in any medium that: (1) describe the ultimate result of a specific case without adequately presenting the facts or law giving rise to the result, and (2) refers to or implies money received by or for a client in a particular case, or to potential monetary recovery for a prospective client. Cal. Bus. & Prof. Code § 6158.1(a), (c). As discussed above, Section 6158.3 requires similar statements, when made specifically in electronic media, to include a disclaimer that the result conveyed was dependent on the facts of the case and results will differ. That disclaimer, however, cannot rebut the presumption that communications described in Section 6158.1 are false or misleading. Id. § 6158.3.

Also, pursuant to Rule 1-400(E), the state bar adopted fifteen “Standards” that identify communications that presumptively violate the rule. As the state bar has noted, many of these standards are similar to prohibitions in the State Bar Act. See Cal. State Bar Formal Op. 2012-186, n.7. For instance, the standards address guarantees, warranties, testimonials, and statements about contingency fees without mention of costs. Rule 1-400(D), Standards 1, 2, 14. Without attempting to list all of the standards, which can be found appended to Rule 1-400, below are a few notable presumed violations:

  1. Communications seeking professional employment transmitted by mail or equivalent means which do not bear the word “Advertisement,” “Newsletter,” or similar words in twelve-point font on the first page. Rule 1-400(D), Standard 5. If transmitted in an envelope, the required words must appear on the outside of the envelope. Id. Professional announcements are an exception.
  2. Communications in the form of misleading firm names or professional designations, such as names that imply a relationship with a government agency or non-profit legal organization, or imply a relationship with another law firm unless such a relationship exists. Rule 1-400(D), Standards 6-9.
  3. An advertisement that does not state the name of at least one lawyer responsible for the advertisement. Rule 1-400(D), Standard 12.

Scope of Communications Subject to Advertising Restrictions

The State Bar Act broadly defines legal “advertising” as any communication “directed generally to members of the public and not to a specific person” that “solicits employment of legal services” and is paid for by or on behalf of the attorney. Cal. Bus. & Prof. Code § 6157(c). It applies to any communications sent via print or electronic media, which includes television, radio or computer networks. Id. § 6157(c), (d).

California Rule of Professional Conduct 1-400 is not limited to communications to the general public or to paid advertising. It governs any type of “communication,” defined to mean “any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or law firm directed to any former, present, or prospective client.” Rule 1-400(A) (1989). Regulated communications include not only traditional forms of advertisements, but also firm names, fictitious names, brochures, stationary, business cards, signs and other comparable written material. Rule 1-400(A)(1), (2).

Lawyer-to-Lawyer Communications: Lawyers seemingly get somewhat of a pass when it comes to communications with other lawyers. Lawyers are presumed to have superior knowledge about the law such that they are unlikely to be affected by vexatious legal advertisements and solicitations. See Cal. State Bar Formal Op. No. 2004-165. Thus, in the State Bar’s view, both Rule 1-400 and the State Bar Act are inapplicable where the “communications seek professional employment through the assistance or recommendations of the recipient attorney, or even if the communication seeks professional employment by the recipient attorney.” Id. (emphasis in original). However, there are two important caveats to this “exception.” First, Opinion 2004-165, which is advisory only, reaches its conclusion by citing and relying upon a prior formal opinion of the State Bar, Opinion 1981-61, but that opinion did not conclude that lawyer-to-lawyer communications are completely exempt. Second, Opinion 2004-165 cautions that no court has interpreted the regulatory scope of the State Bar Act, and lawyer-to-lawyer communications “might potentially” subject lawyers to civil and disciplinary consequences.

Electronic Communications: By now, it should surprise no one that lawyers’ electronic communications, to the extent they offer legal services, come within the scope of legal advertising regulation. A law firm website, even without specific words of invitation or offer, at least implicitly indicates the firm’s availability for professional employment, and is therefore subject to the mandates of Rule 1-400 and the State Bar Act. See Cal. State Bar Formal Op. 2001-155.

A lawyer’s posts on social media platforms may also be subject to the mandates of Rule 1-400 and the State Bar Act, regardless of whether the lawyer posts using a personal profile. See Cal. State Bar Formal Op. 2012-186. Again, the critical question under Rule 1-400(A) is whether the post is construed as concerning the lawyer’s “availability for professional employment.” For example, posting about a court victory for a client and asking, “Who wants to be next?” when viewed in context, may be construed as seeking professional employment. Id. Including similar phrases in a post, such as, “Tell your friends to check out my website” or “Call me for a free consultation” will also trigger an obligation to comply with Rule 1-400. Id.

The same analysis applies to website “blogs,” meaning any website or page consisting of brief articles or comments on any variety of subjects. See Cal. State Bar Formal Op. 2016-196. A blog post that contains an offer to the reader to engage the attorney, or is a step towards securing employment, such as offering free consultation, would be a communication within the meaning of Rule 1-400. Id. A blog that is integrated as part of a law firm website is within the scope of Rule 1-400. Id. A lawyer’s blog that describes the author’s services and makes representations about the quality of those services or results achieved—coupled with a hyperlink to the lawyer’s professional website—implicitly expresses the lawyer’s availability for professional employment, and is therefore subject to the mandates of Rule 1-400 and the State Bar Act. Id.

Given the principles discussed, a profile on professional social media platforms, such as LinkedIn or Avvo.com, may or may not constitute communications subject to restriction, depending on the content of the profile page.

The State Bar has recognized that some of the existing restrictions may be difficult to implement in the context of modern electronic communications. For instance, how can a lawyer be expected to ensure that a social media post states it is an advertisement using “twelve-point” font? As another example, Rule 1-400(F) requires a lawyer to retain for two years a copy of any communication made by written or electronic media, and make it available to the state bar upon request. This requirement would seemingly require a law firm to save not only a copy of every iteration of items such as letterhead, business cards, signs, and the like, but also every version of its website as it changes over time. Depending on how extensive the website is, this requirement could prove to be quite burdensome.

Proposed Revisions to the California Rules of Professional Conduct

On March 30, 2017, the California State Bar submitted proposed new Rules of Professional Conduct to the California Supreme Court that affect Rule 1-400. The proposed new rules, which can be found on the State Bar website, represent a movement toward the American Bar Association Model Rules of Professional Conduct and do not appear to represent a sea change in the regulation of legal advertising. Fundamentally, the over-arching principal will remain the same: when advertising about availability for professional employment, lawyers must be transparent and avoid advertisements that may confuse or mislead members of the public.

Frederick L. Wilks and Samuel Z. Hyams are business litigation attorneys with Hodel Wilks LLP in Irvine, California. Fred can be reached at FWilks@hodelwilks.com. Sam can be reached at SHyams@hodelwilks.com.