Are blogs commercial speech? California bar gives advertising guidance
A lawyer wants to increase her profile in the legal world and perhaps attract new clients. She also wishes to show the world some success stories from prior cases. Many lawyers have blogged about their cases to achieve greater visibility.
The key question for professional responsibility purposes is whether these blogs contain noncommercial informational posts or whether they are communications that fall within the scope of their state’s advertising or solicitation regulations. Professional responsibility rules prohibit advertising that is false, misleading or deceptive. Attorney advertising can be misleading if it creates unjustified expectations on the part of potential clients, speaks about the quality of legal services without verification, or otherwise creates uncertainty or confusion on the part of clients.
The question also carries important constitutional ramifications because in First Amendment law, political speech receives much more protection than purely commercial advertising or what is called commercial speech.
Late last year, the State Bar of California Standing Committee on Professional Responsibility and Conduct issued Formal Opinion No. 2016-196 (PDF), which provided guidance to attorneys through the examination of several hypotheticals involving various types of blogs.
“This opinion is not intended to chill or limit the protected speech of any lawyer, but rather to provide guidance to attorneys engaged in blogging activity as to the types of blogs or blog posts that may fall within the ambit of those regulations and statutes,” the opinion reads.
The opinion distinguishes between blogs that contain merely informational posts and those with an offer for the reader to contact and engage the attorney for professional purposes.
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The hypotheticals featured five attorneys—A, B, C, D and E—who blogged about their past cases, linked to their professional websites and blogged about other subjects.
For example, Attorney A, a criminal defense lawyer, writes a stand-alone blog—Perry Mason? He’s Got Nothing on Me!—in which he blogs about his successful defense of a client who possessed large amounts of cocaine in his car. The blog identifies Attorney A as “one of California’s premier criminal defense lawyers” and contains a hyperlink to his law firm’s professional website. Attorney A also says he has won 50 cases in a row.
The California ethics opinion reasons that this blog would fall under the reach of the rules of professional conduct and may qualify as a false, misleading or deceptive communication. “The blog posts describe the attorney’s services as a criminal defense lawyer and make specific representations concerning the quality of those services,” the opinion explains. “The posts also implicitly express Attorney A’s availability for professional employment and invite readers to employ Attorney A’s services.”
On the other hand, Attorney E is an employment law attorney who blogs about jazz. The blog includes links to his professional website, along with contact information and a brief biographical note.
The California opinion classifies this blog as a “nonlegal blog linked to professional webpage” and concludes that it is not a communication or advertisement within the meaning of the California Rules of Professional Conduct.
The ethics opinion explains that “commercial motivation is only a factor to be considered.” A key question is whether the post concerns “the availability for professional employment.”
The opinion concludes that attorney posts are not communications or advertisements subject to the ethics rules “unless the blog expresses the attorney’s availability for professional employment directly through words of invitation or [an] offer to provide legal services, or implicitly, for example, through a detailed description of the attorney’s legal practice and successes in such a manner that the attorney’s availability for professional employment is evident.”
“The California opinion does an excellent job of analyzing the hypotheticals and reaching the correct results as to whether such blogs are communications within the meaning of the advertising rules,” says professor John Cary Sims of the University of the Pacific’s McGeorge School of Law, who teaches professional responsibility. “The opinion focuses on the critical question of whether certain attorneys blogging about their cases qualifies as a communication.”
“Just because an attorney’s blog contains a link to his or her website does not necessarily mean it is a communication,” Sims adds. “Some of the blogs are classic examples of attorneys trying to make the world aware of their experience for the purpose of increasing their employment opportunities.”
One source the California opinion cited was Hunter v. Virginia State Bar ex. rel. Third District Committee (2013), a Virginia Supreme Court decision that determined Horace Hunter’s blog, devoted to his successes as a criminal defense attorney, qualified as advertising under the Virginia Rules of Professional Conduct.
The Virginia high court emphasized that Hunter’s motivation for the blog was economic, and that he predominately wrote about cases in which he obtained a positive result for his client.
“When considered as a whole, the economically motivated blog overtly proposes a commercial transaction that is an advertisement of a specific product,” the court wrote.
Two justices dissented, reasoning that speech about the criminal justice system and criminal cases qualifies as political speech protected by the First Amendment. “Even if marketing was Hunter’s sole motivation, economic motivation cannot be the basis for determining whether otherwise political speech is protected,” the dissent read.
The U.S. Supreme Court declined to review the case.
First Amendment expert Rodney A. Smolla, who represented Hunter, maintains that the Virginia high court reached the wrong result in its decision. “I have advocated that when a lawyer in a narrative way describes the outcome of prior cases, and when the lawyer explains this is not intended as advertising and results in individual cases may differ—such speech is political speech, not commercial speech.”
“Even though one of the motivations is to promote oneself,” Smolla explains, “the communication still contains much noncommercial speech and should not be considered purely commercial advertising.”
Smolla, who is now the dean of Delaware Law School at Widener University, warns that the trend is in favor of the reasoning of the Virginia Supreme Court majority in Hunter. “The momentum favors bar regulators and disfavors the First Amendment defense. The result in the Hunter case probably captures where lower courts are right now in terms of these issues. I hope someday the U.S. Supreme Court will take a similar case and change the law.”
Smolla also notes the irony of declining support for free speech protection for lawyer advertising in the same era as the U.S. Supreme Court has expanded protection generally for commercial speech. Since the mid-1990s, the court has struck down various restrictions on ads for liquor pricing, gambling, tobacco and other topics.
But, Smolla says, when it comes to questions related to commercial speech, “lawyer advertisers are considered second-class citizens in what is already a second-class area of First Amendment law.”
This article originally appeared in the June 2017 issue of the ABA Journal with the headline "The Blog Difference: California sets boundaries to distinguish between noncommercial information and advertising."