Proposed Formal Opinion Interim No. 12-0006 (Attorney Blogging)

PLEASE NOTE:  Publication for public comment is not, and shall not, be construed as a recommendation or approval by the Board of Trustees of the materials published

SUBJECT:

Proposed Formal Opinion Interim No. 12-0006 (Attorney Blogging)

BACKGROUND:

The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct.  In accordance with Tab 19, Article 2, Section 6(g) (as modified by Tab 12, Title 1, Division 2, Rule 1.10) of the State Bar Board Book, the Committee shall publish proposed formal opinions for public comment.

DISCUSSION/PROPOSAL:

Proposed Formal Opinion Interim No. 12 0006 considers: Under what circumstances is “blogging” by an attorney a “communication” subject to the requirements and restrictions of the Rules of Professional Conduct and related provisions of the State Bar Act regulating attorney advertising.

The opinion interprets rule 1-400 of the Rules of Professional Conduct of the State Bar of California; and Business and Professions Code sections 6157 – 6158.3.

The opinion digest states:
  1. Blogging by an attorney may be a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both.
  2. A blog that is an integrated part of an attorney’s or law firm’s professional website will be a communication subject to the rules and statutes regulating attorney advertising to the same extent as the website of which it is a part.
  3. A stand-alone blog by an attorney, even if discussing legal topics  within or outside the authoring attorney’s area of practice, is not a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising unless the blog directly or implicitly expresses the attorney’s availability for professional employment.
  4. A standalone blog by an attorney on a non-legal topic is not a communication subject to the rules and statutes regulating attorney advertising, and will not become subject thereto simply because the blog contains a link to the attorney or law firm’s professional website. However, extensive and/or detailed professional identification information announcing the attorney’s availability for professional employment will itself be a communication subject to the rules and statutes.

At its Dec. 5, 2014 meeting and in accordance with its Rules of Procedure, the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 12 0006 for a 90 day public comment distribution. Subsequently, at its Jan. 15, 2016 meeting, COPRAC revised the opinion in response to public comments received and, in further accordance with its Rules of Procedure, tentatively approved Proposed Formal Opinion Interim No. 12-0006 for an additional 90-day public comment distribution.

ANY KNOWN FISCAL/PERSONNEL IMPACT:

None

ATTACHMENT:

Proposed Formal Opinion Interim No. 12-0006

SOURCE:

State Bar Standing Committee on Professional Responsibility and Conduct

DEADLINE:

5 p.m., May 12, 2016    

DIRECT COMMENTS TO:
Angela Marlaud
Office of Professional Competence, Planning and Development
State Bar of California
180 Howard St.
San Francisco, CA 94105-1639
Phone: 415-538-2116
Fax: 415-538-2171
Email: angela.marlaud@calbar.ca.gov