New ethics opinion for attorneys who blog
By Laura Ernde
A new ethics opinion on blogging gives guidance to attorneys who post for fun or for profit, ensuring that they don’t violate the rules regulating attorney advertising.
Not all lawyer blogs are subject to the ethical rules, but those that offer to provide legal services, even implicitly, may be considered advertising, according to Formal Opinion No. 2016-196 (re Attorney Blogging) by the State Bar’s Standing Committee on Professional Responsibility and Conduct.
The opinion was approved last month by the Board of Trustees.
The opinion has gone through two rounds of public comment since 2015. Although the conclusion remained the same, the final opinion addresses the First Amendment free speech concerns of blogging.
Posts that express the author’s knowledge and opinion on various issues, legal or not, are considered “core or political speech,” it says, making it clear that the opinion is “not intended to chill or limit the protected speech of any lawyer,” but rather to provide guidance to attorneys engaged in blogging.
The revised version also describes an additional hypothetical situation in which the attorney is blogging about legal topics outside of his practice area. Those posts would not be subject to Rule of Professional Conduct 1-400 if they do not discuss the lawyer’s availability for representation.
Among the other hypothetical examples cited is a criminal defense lawyer with a blog called “Perry Mason? He’s Got Nothing on Me!” That blog should be considered advertising, the opinion says, because the attorney’s blog posts implicitly express his availability for professional employment and invite the readers to employ his services. Rule of Professional Conduct 1-400 outlines the rules for attorney advertising, including that it should not be false or misleading or guarantee a particular result from representation.
The committee’s ethics opinions aren’t binding in a State Bar discipline case, but are often cited by the State Bar Court and California Supreme Court, which has the final say in attorney discipline cases.