Advertising as an attorney is a perilous endeavor. On one hand, nobody can find you if you don’t advertise. On the other hand, advertise in a new or particularly outrageous (for lawyers) way, and risk drawing the ire of your state bar ethics board.
Writing about the legal ethics of attorney advertising can be depressing. But there are good days too. Sometimes you get to write about an ethics decision that really got it right. Other times you get to write about overzealous ethics boards getting a well-deserved bench slap.
And rarely, you get to have a very good day, and you get to write about both.
In California, you can’t evade attorney advertising rules on a “personal” blog.
When is a blog, written or maintained by a lawyer, governed by the ethical rules regarding attorney advertising? Well, when it would be considered “advertising” on any other medium.
It would appear that lawyers writing “personal” blogs about their practice didn’t realize that. A recent ethics opinion decided to address the “misunderstanding.”
FORMAL OPINION INTERIM NO. 12-0006
According to the opinion, a blog written by a lawyer must comply with attorney advertising rules if the blog is 1) attached directly to a law firm website, or 2) expressly or implicitly invites the reader to retain the attorney. A blog is not required to comply with the rules if it merely links to the attorney’s bio page on another website.
Sure, this opinion seems kind of obvious. And, prior to reading the entire opinion, I wondered why it was even something that was being debated. However, upon a full reading, there are apparently plenty of attorneys in California who use “personal” blogs to circumvent attorney advertising rules.
(Before I continue, yes, I understand that the factual scenarios in the opinion were technically fictitious. However, I don’t believe the ethics panel included the examples to demonstrate their own imaginative capacity, but rather did so because they were representative of actual cases.)
Bad news for lawyers who are trying to circumvent the rules.
The first example cited is the attorney who used a blog, entertainingly titled “Perry Mason? He’s Got Nothing on Me!” (proof that they’re not claiming to be very imaginative). In the blog, the attorney discussed his criminal practice, and included a post written following a big win. In discussing the win, the attorney included some facts from the case and described how the jury was “mesmerized” by his closing argument.
Obviously advertising, right? The California bar, in this non-binding opinion, agrees.
There were also attorneys who seemed to believe that a blog attached to a law firm website did not need to comply with the attorney advertising rules. Also, obviously advertising.
Helpful guidance to lawyers who blog.
Overall, this opinion does a good job of allowing attorneys to post personal blogs free of the burdens of attorney advertising regulations. And, it provides additional justification for attorneys to keep their blogs separate from their firm websites.
However, it also provides a very clear statement that attorneys cannot use a “personal” blog to promote their services in any way not permissible on a website or a billboard. Essentially, you can’t get around the rules simply by calling your blog “personal.”
Judge gives Florida’s ethics board a tongue lashing over attorney advertising rules.
If you’ve followed my blog, you might have some idea what I think about the Florida state bar’s rules on attorney advertising (or their approach to ethics in general). If not, I don’t particularly like them. A federal judge recently agreed.
Florida’s ban on advertising of past results.
In the case, Robert Rubenstein v. The Florida Bar, plaintiff sought to challenge Florida’s long-standing rule prohibiting the use of past results in attorney advertising. Most states allow advertising of past results, but they have strict requirements on how the information is to be conveyed to limit the ad’s potential to mislead the public.
Recently, Florida modified the rule on past results, but not for the better. Past results could be included in attorney advertising, but only once they were approved by the Florida bar. Oh, and just because the ad gets approved doesn’t mean it’ll stay approved. Nice, huh?
Plaintiff’s advertising campaign.
In this case, plaintiff spent considerable time and money from May 2013-October 2013 putting together a series of television ads. (p. 6) Each ad was submitted for approval. The bar approved some ads, and provided recommendations for bringing the non-approved ads into compliance.
Then, in early 2014, the bar changed its mind and withdrew the approvals for ads that included any reference to past results. All of them. So plaintiff filed suit in March 2014, and despite the withdrawal of approval, continued to run the ads. In June 2014, the Florida bar notified plaintiff that the ads were a violation of the rules, and that ethics proceedings would begin. (pp. 7-9)
Notably, the Florida bar decided to “close” the proceedings against plaintiff an hour before it filed a summary judgment motion in the pending lawsuit. Oh, they also based their motion for summary judgment on the non-justiciability of plaintiff’s claim – because there was no pending ethics action! (p. 8)
The court was unimpressed.
The court dismissed the Florida bar’s position out of hand, denying their motion for summary judgment in whole. Then, in addressing the plaintiff’s motion under the first amendment, the court began by describing what a crappy job the Florida bar had done in addressing the first amendment issue:
“Choosing also in its Response to the instant Motion to focus on its justiciability arguments, the Bar dedicated only a few paragraphs (of its five and half page brief) to the substance of the First Amendment issues. This Court rejected the Bar’s standing and ripeness challenges to Plaintiffs’ First Amendment claim, and determined that Plaintiffs’ claim is justiciable.” (p. 9)
The court also had the following to say about the Florida bar’s argument:
“The Bar’s statements of fact on this issue are directly contradicted by the record evidence before the Court.” (p. 20)
“[T]he Bar’s statements… are directly contradicted by record evidence… and are not supported even by the evidence to which the Bar cites.” (p. 20)
“The Bar’s declaration… is misleading and belied by the very disciplinary actions taken by the Bar against Plaintiffs here.” (p. 22)
Oh, and even though the plaintiff was technically challenging the Florida bar’s attorney advertising rules as they were applied in this case, the judge invalidated the regulations in their entirety.