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By Jack J. McMorrow, Esq
Near the end of 2019, the State Bar of California Standing Committee on Professional Responsibility and Conduct issued Formal Opinion 2019-199 regarding an attorney’s obligations concerning third-party website “profiles” of her/himself effectively advertising on her/his behalf.
The Formal Opinion was quick to conclude that the rules governing attorney advertising apply to the individual that “adopts” any such profile. The list of third-party websites managing profiles on behalf of attorneys is extensive and expanding – Avvo, Yelp, Facebook, etc. Each third-party attorney profile presents unique ethical considerations for the attorney, which, if ignored, could lead to discipline or disbarment. Not only is it important for the attorney to understand the application of the advertising rules to these profiles, the attorney should be reminded of the rules and learn how they apply in these instances so she/he can apply them to newer technologies as they develop.
After reviewing key rules of attorney advertising, this article reviews the findings and direction within the State Bar’s Formal Opinion 2019-199 concerning attorney profiles maintained by third party websites. This article aims to help the reader understand the rules and their professional responsibility as it relates to his/her attorney profile maintained by a third party.
A. The Rules
All media an attorney uses to promote the attorney’s professional legal services are regulated by rules 7.1 and 7.2 of the California Rules of Professional Conduct. Rule 7.2 specifically confirms that lawyers may advertise their legal services subject to rules 7.1 and 7.3. A lawyer’s right to advertise is also subject to the limitations set forth in Business and Professions code section 6157.2 through 6258.3. The list that follows is a summary of the general rules.
1. Be truthful
Rules of Professional Conduct, Rule 7.1(a) provides:
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the communication considered as a whole not materially misleading.
Section 6158 similarly requires the advertising “message” must “not be false, misleading, or deceptive, and the message as a whole must be factually substantiated.” It defined “factually substantiated” as “capable of verification by a credible source.”
2. Do not promise an outcome
Section 6157.2(a)-(b) states that no advertisement may include a guarantee or warranty regarding the outcome of a legal matter. It goes further to state that no advertisement may include: “Statements or symbols stating that the licensee featured in the advertisement can generally obtain immediate cash or quick settlements.”
3. The audience must know who is who
Business & Professions Code section 6157.2(c) requires that the advertisement be without impersonations of the attorney. Only the attorney may represent her/his image. One may use impersonations of client only if the advertisement includes a disclosure regarding the impersonation or dramatization – otherwise, it must be the actual client. Finally, if the advertisement uses a spokesperson, her/his title must be disclosed in the advertisement.
4. The list of “Do Nots” in Attorney Advertising
There is a list of “do nots” in attorney advertising that is implicit within Section 6158.1, which provides there is a rebuttable presumption that the advertising message is false, misleading, or deceptive within the meaning of Section 6158 (referenced above):
(a) A message as to the ultimate result of a specific case or cases presented out of context without adequately providing information as to the facts or law giving rise to the result.
(b) The depiction of an event through methods such as the use of displays of injuries, accident scenes, or portrayals of other injurious events which may or may not be accompanied by sound effects and which may give rise to a claim for compensation.
(c) A message referring to or implying money received by or for a client in a particular case or cases, or to potential monetary recovery for a prospective client. A reference to money or monetary recovery includes, but is not limited to, a specific dollar amount, characterization of a sum of money, monetary symbols, or the implication of wealth.
Thus, one should avoid (a) presenting the ultimate result of a case without facts or law giving rise to the result, (b) depictions or dramatizations of events giving rise to claims for compensation, and (c) implying that money will be received by the client, including depictions of dollar signs, etc.
5. The approved list of “Dos” in Attorney Advertising
The advertising attorney is permitted to provide some information without concern about violating the rules of advertising. Section 6158.2 provides a specific list of permissible content, such as the attorney’s name, firm, address, field of practice, licenses to practice, date of admission to the bar, legal teaching positions, bar memberships, etc. A review of the Section indicates that basic factual information is appropriate.
6. Hedging against rule violations
Section 6158.3 provides some guidance on an attorney’s decision to include in the advertisement some portrayal of a result in a particular case. It provides that any such advertisement must “adequately disclose the factual and legal circumstances that justify the result portrayed in the message, including the basis for liability and the nature of injury or damage sustained, or the advertisement must state that the result portrayed in the advertisement was dependent on the facts of that case, and that the results will differ if based on different facts.” [emphasis added].
Although it is not necessarily a “rule of advertising”, some review and understanding of the rules of engagement regarding solicitation for professional employment is useful.
Rule 7.3 regulates communications about legal services through direct contact with specific people. Rule 7.3(a) prohibits an attorney from in-person, live telephone, or real-time electronic (e.g., instant messaging, live e-chat) contact solicitation for professional employment where a significant motive is the lawyer’s pecuniary gain. There are two exceptions, however. This does not apply when the individual contacted is (1) a lawyer or (2) an individual with a family, close personal, or prior professional relationship with the lawyer.
Rule 7.3(b) further prohibits any solicitation for professional employment even if otherwise permissible under Rule 7.3(a) in either of these instances: (1) when the individual has made it clear that he/she does not want to be solicited; or (2) the solicitation involves intrusion, coercion, duress, or harassment
The Comments to the rule help clarify its scope. For one, a lawyer’s communication directed to the general public (e.g. billboard or tv ad) is not a solicitation, nor is a response to a request for information. (See Comment .) Nor does the rule apply to situations in which the lawyer is motivated by considerations other than pecuniary gain, such as communications for bona fide public or charitable legal service organization work. (See Comment .)
C. The Attorney’s Obligations to Monitor, Edit and/or Abandon his/her profile on third party websites
Having reviewed many of the key rules regarding the rules of attorney advertising, we turn to applying those rules to attorney profiles maintained by third party websites and directories.
The State Bar of California Standing Committee on Professional Responsibility and Conduct’s Formal Opinion 2019-199 (“The Opinion”) discusses this very issue. Essentially two questions are explored in the Opinion – (1) When are the ethical obligations regarding attorney advertising concerning one’s attorney profile maintained by a third party activated, and (2) how might those rules apply?
Regarding the first question, the Opinion concludes that “an attorney is not responsible for the content of an attorney’s profile on a professional online directory and rating website created and maintained by a third party.” However, if the attorney “adopts” the profile, the rules of advertising apply. The rules of advertising terminate when an attorney who abandons the profile.
The Opinion is clear that the rules of advertising apply when one uses the profile as a marketing communication. (See Page 4.) The profile becomes a marketing communication when (a) the attorney adopts the profile and assumes control over the content of the profile (engaging in a marketing communication to viewers of the third party profile) or (b) when the attorney uses the third party profile to market himself/herself (e.g. posting a link to the profile on his/her website).
Interestingly, the Opinion concludes that the attorney need not be unaware of the profile for the rules of advertising to not apply – he/she may be aware of the profile and not be subject to the rules of advertising, so long as he/she takes no action regarding the profile. Apparently, the third-party profile can be violative of the rules of advertising and be entirely false and misleading and the attorney need not take any action even if he/she is aware of these facts.
What constitutes complete abandonment of the profile is unclear. The Opinion notes it is a determination to be made on a “case-by-case” basis and that the abandonment can happen at any time. Some actions are clearer than others. In the Opinion’s hypothetical, the attorney posted on the profile they were no longer monitoring the profile and removed the link from their website. That was deemed sufficient to escape the ethical obligations of attorney advertising going forward.
Regarding the second question, the Opinion concludes that, when the profile has been adopted, the ethical obligations of attorney advertising apply, and so the attorney must not post or induce false or misleading information, take reasonable steps to correct false or misleading information, etc. The rules are as one would imagine. The Committee’s rules regarding sufficient efforts to correct a third party’s comment on an attorney profile (which misstates facts and is misleading) were, by their own words, dictated by common sense. Essentially, the Opinion urges the attorney to learn the rules discussed herein and be ready to apply them to any profile he/she adopts.
J. McMorrow, Esq. is a family law attorney with the law firm
of Harris • Ginsberg LLP in Los Angeles, California. He serves as Vice-Chair of
the California Young Lawyers Association. The views presented
in this article are his own and do not represent the views of his
employer or any other entity.
 Rule 7.2 also sets forth the permissible instances in which a lawyer may pay for recommending or securing legal services.
 Hereafter, all code references are made to the California Business and Professions Code.