When is attorney blogging an advertisement?

Proposed Opinion 12-0006 is issued now as Formal Opinion 2016-196. Please see here: http://www.technethics.com….



In the proposed Opinion 12-0006, the California Standing Committee on Professional Responsibility opined on “under what circumstances is “blogging” by an attorney subject to the requirements and restrictions of the Rules of Professional Conduct and related provisions of the State Bar Act regulating attorney advertising”

Advertising for California attorneys is primarily governed by rule 1-400.

The Committee states that Rule 1-400(A) defines a “communication” as “any message or offer made by or on behalf of a member [of the State Bar] concerning the availability for professional employment . . . directed to any former, present, or prospective client.” This establishes a three-part test, all three parts of which must be satisfied in order for the message or offer to qualify as a communication: (1) be made by or on behalf of a California attorney; (2) concern the attorney’s availability for professional employment; and (3) be directed to a former, present, or prospective client.

The Committee makes the point that part (1) and (3) of the test are always met by an attorney’s blog. The issue is whether a blog meets element (2).

A blog that talks about a lawyer’s success stories, with self-promotional statements, and with no possibility of leaving comments, is a “communication” pursuant to rule 1-400 even if “does not include specific words of invitation to retain the authoring attorney’s services”.

A blog that is held “on the firm [professional] website” constitutes communication subject to rule 1-400” even if the content is “information and material of general public interest”.

A stand-alone blog consisting of short articles (“informational in nature”) on topics of interest ( whose primary purpose … is to demonstrate his knowledge of family law”), not focusing on “on current or former cases of [the attorney] …, nor describ[ing] his own family law practice”, with “no overt statements of … [ attorney’s] availability for professional employment”, is an advertisement when there is an “admonition that if the reader has questions about his or her divorce, they should contact Attorney C.”

Lastly a non-legal blog linked to professional web page, is not “subject to rule 1-400, provided the attorney author does not actively use the blog to solicit business as an attorney”, even if there is the posts contain the invitation “if you have questions, contact me.”

See also here

Full proposed opinion here

Referenced authorities:

  • Rules of Professional Conduct of the State Bar of California Rule 1-400
  • Business and Professions Code sections 6157 – 6158.3.

Mentioned Ethic Opinions: Cal. State Bar Formal Opn. Nos. 2001-155 and 2012-186

Mentioned case law: Hunter v. Virginia State Bar ex rel. Third District Committee (2013) 285 Va. 485 [744 S.E.2d 611] (cert. den. (2013) __ U.S. __ [133 S.Ct. 2871])

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