ethics in ads and social media ca ny wa

Avvo, Inc. - Copyright 2009

Ethical Issues in Online Legal Advertising & Social Media


CLE Credits

California & New York lawyers• Certificates and evaluation forms available after program

Washington lawyers• Fill out sign-in sheet; include bar #

CLE Written Materials Available at:

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http://avvoblog.com/cle-documents/


Introduction Josh King

Vice President, Business Development & General Counsel, Avvo, Inc. Josh started his career as a litigator in San Mateo, CA. Since then, he has worked in-house in a variety of legal and non-legal roles, including serving as General Counsel of Cellular One of San Francisco and Vice President, Corporate Development at AT&T Wireless. Josh has an undergrad degree from the University of Oregon, a J.D. from UC, Hastings College of the Law and is a member of the California Bar.

Twitter: @joshuamkingEmail: [email protected]


Overview

Legal basis for ad regulation First Amendment ABA Model Rules, CA and other state regulation

Online & Social Media Issues – 10 Ways Attorney Ad Rules are Implicated Online

Q&A and Closing Thoughts


Attorney Ad Regulation

Central Hudson (1980) – restrictions on commercial speech subject to “intermediate scrutiny.” Is the ad related to lawful activity and not misleading? Is the governmental interest substantial?

• if so . . .

Does the regulation directly advance the asserted governmental interest?

Is the regulation more extensive than necessary to serve that interest?


Developments Post-Central Hudson

Nearly two dozen Supreme Court cases

Steady expansion of protection for advertisers

Growing call for elevating commercial speech to “strict scrutiny” standard enjoyed by other types

Some states react with more restrictive rules


ABA Model Rules Rule 7.1: No “False or Misleading”

communications Test is whether a communication contains a “material

misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”


ABA Model Rules Rule 7.3(a): Prohibitions on in-person solicitation

(including “real time electronic contact”) where “significant motive” is pecuniary gain. Exceptions for family, close personal or prior professional

relationship Rule 7.3(c): All forms of solicitation must include

the words “Advertising Material.”


CA Advertising Rules - Bar

Rule 1-400: Generally applies to all advertising communications, regardless of medium

Similar to ABA Model Rules, but more detail “Communication” vs. “Solicitation”

In-person or telephonic solicitation generally prohibited Both must avoid deception, etc. Restrictions on stating that one is a “certified specialist”

Numerous state bar “standards” describe forms of communication presumed to violate 1-400

http://calbar.ca.gov/state/calbar/calbar_generic.jsp?sImagePath=Current_Rules.gif&sCategoryPath=/Home/Attorney%20Resources/Rules/Rules%20of%20Professional%20Conduct&sFileType=HTML&sCatHtmlPath=html/RPC_Current-Rules-1-400.html


CA Advertising Rules - Legislative

CA Business & Professions Code §§6157 – 6159.2 Much overlap with Bar Ethics Rules But – more questionable examples of

communication techniques than Bar Rules


New York

Highly restrictive rules


Other States

Progressive trend: Alabama, Maine

Regressive trend: Florida, Louisiana


A Bad Fit? How Attorney Ad Rules are Implicated Online


#1 - Attorney Web Sites

Are attorney web sites “communication” or “solicitation”?

CA Ethics Opinion 2001-155: Not “Solicitation”


#2 Online Ads & Sponsored Listings


#3 – Social Media, Directory Profiles

Yes, to the extent information is controlled by you and used for professional purposes.


#4 Endorsements & Testimonials


#5 - IM & Twitter – Solicitation?

CA Ethics Opinion 2004-166: Communication by e-mail or in chat room is not in-person or telephonic solicitation

But note - many other states, including FL, MI, OR & VA, take the opposite view (as does the ABA Model Rule 7.3(a))


#6 – Vulnerable Parties


#7 - Extrajudical Statements

Lawyers don’t forfeit their 1st Amendment rights

But – May be subject to ethical precepts that keep them from engaging in what otherwise might be constitutionally protected speech.

“Substantial likelihood of material prejudice” in relation to adjudicative proceedings.


#8 - Results Obtained – Disclaimer?


#9 - “Advertisement” Disclosure? Requirement to say

“advertisement” on first page of communication


# 10 - Keep “all copies” for 2 Years?

CA Rule 1-400(F): A member shall retain for two years a true and correct copy or recording of any communication made by written or electronic media. Upon written request, the member shall make any such copy or recording available to the State Bar, and, if requested, shall provide to the State Bar evidence to support any factual or objective claim contained in the communication.


Conclusion

Questions & Comments MCLE certificates of attendance and evaluation

forms

ethics in ads and social media ca ny wa

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