CABAR 2012-12-21

When are a California lawyer's posts on Facebook, Twitter, or other social media subject to the rules governing attorney advertising?

Short answer: Per California Formal Opinion 2012-186, a social-media post is subject to former Rule 1-400 if it is a 'communication' concerning the lawyer's availability for professional employment; routine status posts may cross into that category by adding solicitation, testimonial, or guarantee content.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original ethics opinion (PDF)

State Bar of California COPRAC Formal Opinion 2012-186: Social Media Postings and Attorney Advertising

Short answer: The opinion concludes that material an attorney posts on social media is subject to the rules governing attorney advertising if the material is a "communication" within the meaning of former Rule 1-400 or an "advertisement by electronic media" within the State Bar Act, and that the rules are not relaxed because compliance is awkward in a social-media setting.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The opinion examines five hypothetical Facebook-style status posts by Attorney on a personal profile visible only to her approximately 500 "friends." The committee analyzes whether each constitutes a "communication" subject to former Rule 1-400, which applies to any "message or offer ... concerning the availability for professional employment."

Example 1, "Case finally over. Unanimous verdict! Celebrating tonight.". Not a communication. The committee concludes that announcements of victories alone, without an accompanying offer about availability for professional employment, generally do not qualify as communications.

Example 2, "Another great victory in court today! My client is delighted. Who wants to be next?". A communication. The added "Who wants to be next?" suggests availability for professional employment. The post then triggers presumed violations: rule 1-400(E) Standard 2 (testimonial without disclaimer), Standard 1 (guarantees of results), and Standard 5 (failure to include "Advertisement" designation). The committee notes the post must also be retained for two years under rule 1-400(F), with manual preservation if the platform does not automatically archive.

Example 3, "Won a million dollar verdict. Tell your friends to check out my website.". A communication. The directive to "tell your friends to check out my website" conveys an offer concerning availability for professional employment. Same Standards 2 and 5 and retention obligations apply.

Example 4, "Won another personal injury case. Call me for a free consultation.". A communication. The committee holds that an offer to perform a professional service for free is still a communication; an offer of a free consultation is a step toward securing potential employment. The post is not a "solicitation" because it is not delivered in person or by telephone (former Rule 1-400(B)), but it is a communication subject to former Rule 1-400(D) and the Standards.

Example 5, "Just published an article on wage and hour breaks. Let me know if you would like a copy.". Not a communication. The committee, citing Belli v. State Bar (1974) and Los Angeles County Bar Formal Opinion 494, concludes that exposition of legal information without solicitation is not a communication.

The committee also addresses the awkwardness argument and the 12-point Standard 5 designation. It notes the State Bar may need to review such standards but, until any changes, the committee cannot opine that smaller font is acceptable. The opinion does not address whether the initial "friend" or "connection" request can itself constitute a communication.

In practice

Under California's rules as they stood at the time of the opinion, the operative test asks whether each post concerns the lawyer's availability for professional employment. A pure announcement of an outcome generally is not; a post that invites further engagement (whether for fee or for free), implies availability, or directs viewers to the lawyer's website is. Posts that cross into "communication" must comply with former Rule 1-400(D)'s truthfulness and identification requirements and the Standards (which include testimonial-disclaimer, guarantee-prohibition, and "Advertisement" designation requirements), and must be retained for two years. Compliance with retention may require manual saving where the platform does not auto-archive. Verify against current Rules 7.1 and 7.2 before relying on this framework.

Common questions

Q: Is everything a California lawyer posts on Facebook or Twitter regulated as attorney advertising?

A: Per the opinion, no. The committee says only posts that are "communications" within the meaning of former Rule 1-400 (or "advertisements by electronic media" under Business and Professions Code sections 6157 et seq.) are subject to the advertising rules. Whether a particular post qualifies depends on whether it concerns the lawyer's availability for professional employment.

Q: Is "Case finally over. Unanimous verdict! Celebrating tonight." subject to the advertising rules?

A: Per the opinion, no. The committee concludes a victory announcement standing alone is not a communication.

Q: What about adding "Who wants to be next?" to a victory post?

A: Per the opinion, yes. That phrase suggests availability for professional employment and turns the post into a communication, and the post is then presumed to violate Standards 1, 2, and 5 of former Rule 1-400.

Q: Does offering a free consultation make a post a communication?

A: Per the opinion, yes. The committee holds that "communications" are not limited to messages seeking financial compensation, and an offer of a free consultation is a step toward securing potential employment.

Q: Does the lawyer have to keep copies of social-media posts that are "communications"?

A: Per the opinion, yes. Former Rule 1-400(F) requires retention of communications by electronic media for two years, and if the platform does not auto-archive, the lawyer must save them manually (for example, by printing or saving a screen copy).

Q: Can the lawyer skip the "Advertisement" designation because including it on every post is awkward?

A: Per the opinion, no. The committee notes that if compliance makes the advertisement seem awkward, the solution is to change the form of advertisement.

Background and rules framework

Former Rule 1-400 governs advertising and solicitation, applying to any "communication" concerning the lawyer's availability for professional employment, and the 16 enumerated Standards list communications presumed to violate the rule. Business and Professions Code sections 6157 through 6158 govern advertising by electronic media. The committee builds on California State Bar Formal Opinion 2001-155 (law firm websites) and California State Bar Formal Opinion 2004-166 (mass disaster chat-room contact). The current California analogues are Rules 7.1 through 7.5.

Citations and references

Rules of Professional Conduct (former, in effect at time of opinion):

Former California Rule 1-400 (Advertising and Solicitation), including Standards 1, 2, 5, 13, and 14, and paragraphs (A), (B), (D), (E), (F)

Statutes:

California Business and Professions Code section 6106
California Business and Professions Code sections 6151, 6152
California Business and Professions Code sections 6157, 6157.1, 6157.2, 6158, 6158.1, 6158.2, 6159, 6159.2

Cases:

Belli v. State Bar (1974) 10 Cal.3d 824, exposition of accomplishments and advertising

Other opinions cited:

California State Bar Formal Opinion 2001-155, law firm websites
California State Bar Formal Opinion 2004-166, mass-disaster chat-room contact
Los Angeles County Bar Association Formal Opinion 494, exposition of legal information

Source

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 2012-186

ISSUE: Under what circumstances would an attorney's postings on social media websites be subject to professional responsibility rules and standards governing attorney advertising?

DIGEST: Material posted by an attorney on a social media website will be subject to professional responsibility rules and standards governing attorney advertising if that material constitutes a "communication" within the meaning of rule 1-400 (Advertising and Solicitation) of the Rules of Professional Conduct of the State Bar of California; or (2) "advertising by electronic media" within the meaning of Article 9.5 (Legal Advertising) of the State Bar Act. The restrictions imposed by the professional responsibility rules and standards governing attorney advertising are not relaxed merely because such compliance might be more difficult or awkward in a social media setting.

AUTHORITIES INTERPRETED: Rule 1-400 of the Rules of Professional Conduct of the State Bar of California. Business and Professions Code section 6106, 6151, and 6152. Business and Professions Code sections 6157 through 6159.2.

STATEMENT OF FACTS

Attorney has a personal profile page on a social media website. Attorney regularly posts comments about both her personal life and professional practice on her personal profile page. Only individuals whom the Attorney has approved to view her personal page may view this content (in Facebook parlance, whom she has "friended"). Attorney has about 500 approved contacts or "friends," who are a mix of personal and professional acquaintances, including some persons whom Attorney does not even know.

In the past month, Attorney has posted the following remarks on her profile 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."

DISCUSSION

Although attorneys are permitted to advertise, any such advertisements must comply with a number of restrictions in both the Rules of Professional Conduct and the Business and Professions Code. For example, Business and Professions Code section 6157.1 prohibits any "false, misleading or deceptive statement" in an advertisement, while section 6157.2 prohibits including in an advertisement any "guarantee or warranty regarding the outcome of a legal matter." Rule 1-400 provides even more detailed requirements with which attorney advertising must comply. Specifically, rule 1-400(D) provides rules that must be followed to ensure that a communication is not false or misleading, or made in a coercive manner. Rule 1-400 also provides sixteen enumerated "Standards" listing examples of communications which are presumed to be in violation of rule 1-400.

In the above hypothetical, Attorney must determine whether her postings constitute advertisements that must comply with these various advertising rules. Rule 1-400, however, speaks in terms of "communications" rather than "advertisements." Thus, it is important to look at how both terms are defined.

Business and Professions Code section 6157(c) defines "advertise" or "advertisement" as: "[A]ny communication, disseminated by television or radio, by any print medium, including, but not limited to, newspapers and billboards, or by means of a mailing directed generally to members of the public and not to a specific person, that solicits employment of legal services provided by a member, and is directed to the general public and is paid for by, or on the behalf of, an attorney."

Communications under Rule 1-400

Rule 1-400(A) defines "communications" for purposes of that rule 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..."

If a posting is found to be a communication subject to rule 1-400, the result is that the posting must comply with the mandates of Rule 1-400(D); it also should avoid falling within one of the sixteen enumerated types of communications presumed to be in violation of rule 1-400, as set forth in the Standards. Rule 1-400(D) generally provides that a communication must not be untrue or misleading, must disclose that it is a communication, and must not be transmitted in a coercive or intrusive manner.

Specific Examples

Example Number 1: "Case finally over. Unanimous verdict! Celebrating tonight."

In the Committee's opinion, this statement, standing alone, is not a communication under rule 1-400(a) because it is not a message or offer "concerning the availability for professional employment," whatever Attorney's subjective motive for sending it. Attorney status postings that simply announce recent victories without an accompanying offer about the availability for professional employment generally will not qualify as a communication.

Example Number 2: "Another great victory in court today! My client is delighted. Who wants to be next?"

Similarly, the statement "Another great victory in court today!" standing alone is not a communication. However, the addition of the text, "[w]ho wants to be next?" meets the definition of a "communication" because it suggests availability for professional employment. Thus, it is subject to rule 1-400(D) and rule 1-400's Standards.

Having concluded this status posting is a communication, the post violates the prohibition on client testimonials. An attorney cannot disseminate "communications" that contain testimonials about or endorsements of a member unless the communication also contains an express disclaimer. See Rules Prof. Conduct, rule 1-400(E), Std. 2. Similarly, the post may be presumed to violate rule 1-400 because it includes "guarantees, warranties, or predictions regarding the result of the representation." See Rules Prof. Conduct, rule 1-400(E), Std. 1. The post expressly relates to a "victory," and could be interpreted as asking who wants to be the next victorious client.

The Committee further concludes that "Who wants to be next?" when viewed in context, seeks professional employment for pecuniary gain. Accordingly, Attorney's post runs afoul of rule 1-400(E), Std. 5, because it does not bear the word "Advertisement," "Newsletter," or words to that effect.

Finally, the Committee notes that a true and correct copy of any "communication" must be retained by Attorney for two years. Rule 1-400(F) expressly extends this requirement to communications made by "electronic media." If Attorney discovers that a social media website does not archive postings automatically, then Attorney will need to employ a manual method of preservation, such as printing or saving a copy of the screen.

Example Number 3: "Won a million dollar verdict. Tell your friends to check out my website."

In the Committee's opinion, this language also qualifies as a "communication" because the words "tell your friends to check out my website," in this context, convey a message or offer "concerning the availability for professional employment." It appears that Attorney is asking the reader to tell others to look at her website so that they may consider hiring her. This language therefore is subject to the adverse presumption in rule 1-400(E), Standard 5 and the preservation requirement in rule 1-400(F).

Example Number 4: "Won another personal injury case. Call me for a free consultation."

Again, the Committee concludes that this posting is a "communication" under rule 1-400(A), due primarily to the second sentence.

A communication has to include an offer about availability for professional employment so the "free" consultation language at first might indicate the posting is not a communication. Yet the rule does not limit "communications" to messages seeking financial compensation for services. To the contrary, a communication includes 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." Given that the rule does not require that all communications are for pecuniary gain, we conclude that an offer to perform a professional service for free can constitute a communication. An offer of a free consultation is a step toward securing potential employment, and the offer of a free consultation indicates that the lawyer is available to be hired.

Example Number 5: "Just published an article on wage and hour breaks. Let me know if you would like a copy."

In this instance, we believe the statement does not concern "availability for professional employment." The attorney is merely relaying information regarding an article that she has published, and is offering to provide copies. See Belli v. State Bar, supra, 10 Cal.3d 824, 839; see also Los Angeles County Bar Assn. Formal Opn. 494. Accordingly, this posting does not fall under rule 1-400, and need not comply with any of the Standards of rule 1-400(E).

CONCLUSION

Attorney may post information about her practice on Facebook, Twitter, or other social media websites, but those postings may be subject to compliance with rule 1-400 if their content can be considered to be "concerning the availability for professional employment." Such communications also may be subject to the relevant sections of California Business and Professions Code sections 6157 et seq.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only.