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Apr 19

Is a cute Instagram of your cat an advertisement?

In the age of social media, which has transformed marketing and advertising practices in the legal world, it could be.

Today’s attorneys find themselves in uncharted territory, trying to navigate Twitter, Facebook, even LinkedIn, without throwing established rules of ethics and professional responsibility overboard. 

Attorney ethics in California are governed by the Rules of Professional Conduct of the State Bar of California and the State Bar Act.  The goal is to regulate the message to potential clients, not the specific mode of communication, so there’s no mention of electronic media specifically in the Rules.

The State Bar of California defines attorney “communications” 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 doesn’t matter what the medium; if the message is that the attorney is available for hire, it’s bound by the Rules of Professional Conduct.

The State Bar Act has a distinct code section for what it calls “electronic media” advertising.  This includes advertising by “television, radio, or computer networks.”

The virtual buffet offered by the different electronic and social media platforms has made the “computer networks” part more complicated. What if an attorney sends a public Snapchat that disappears in 10 seconds and can never be retrieved?  Or posts on Facebook or Twitter, or blogs about a live event in order to lure future clients without directly targeting them?  If that cute cat Instagram makes you, as an attorney, more approachable to potential clients, is it an advertisement?

In a move to clarify, the State Bar of California has published a wide range of ethics opinions.  While the opinions do a good job of assessing different scenarios involving attorney ads using new electronic media, they are only advisory.  They are not binding in any court or by any entity charged with regulatory responsibilities.

Attorney blogs are also a target of regulation.  The State Bar of California issued an opinion that law firm websites are there to advertise attorney services, and since many attorney blogs are are posted on those websites, they’re also considered advertisements and subject to the Rules of Professional Conduct. The contents of an attorney’s blog are subject to scrutiny if the language expresses the attorney’s availability for professional employment directly or implicitly, or both. Lawyers in California also have to be aware of the fact that while their blog or website’s content could reach a worldwide audience, they’re subject to California and local laws.

Ultimately, it’s up to attorneys to comply with ethics rules online, to be clear with their intentions and disclaim potential misinterpretations as they go.