California’s Standing Committee on Professional Responsibility and Conduct (COPRAC) has been working on an ethics opinion on the applicability to attorney advertising rules to blogs for a while now, and after receiving public comments on its draft opinion, it released a revised draft and opened up a new 90-day public comment period. Comments can be submitted through May 12, 2016.
The question is whether lawyer blogs subject to attorney advertising rules (which in California means subject to the many restrictions of Rule of Professional Conduct 1-400, which significantly ups a lawyer’s potential liability for making a mistake in a blog post).
The biggest changes being made to the draft opinion in light of public comment pertain to blogs of a non-legal nature. COPRAC says that blogs by lawyers on non-legal topics will not be subject to the Rules of Professional Conduct even if it contains a link to the lawyer’s professional website unless the blog contains “extensive and/or detailed professional identification information” announcing that the attorney is available for employment. The same general rule applies to a blog hosted outside of the lawyer’s own website – the rules only kick in if the lawyer holds himself out in the blog post as available for employment. This is consistent with First Amendment law, as COPRAC expressly acknowledges.
Of particular note to practitioners around the country, COPRAC specifically discussed the Model Rules and how California’s regime regulating attorney advertising are very similar. Thus, COPRAC implies that Model Rules jurisdictions would likely come to the same conclusion as COPRAC when looking at attorney blogs.
COPRAC’s opinion does not exempt from the advertising rules a blog that is not maintained by the lawyer but contains content written by the lawyer. The critical point in determining whether a blog post is subject to the advertising rules or not is whether it contains a reference to availability for employment. So, if you write on a site that you do not host or maintain, be very careful in how you describe your practice and your intent to gain new clients.
COPRAC’s hypotheticals indicate that publishing a blog that demonstrates your knowledge of your practice area will not subject you to attorney advertising restrictions if it contains information but not offers of availability; the same is true if the blog contains articles of opinion or information on legal issues outside your practice area and does not offer your services. However, if you host the blog on your professional website, which by its very nature is attorney advertising even if it is also informational, then the advertising rules will apply.
Keep in mind that this opinion is not yet final, and public comments are welcomed through May 12, 2016.