California Ethics Opinion reviews advertising restrictions on lawyers when posting and commenting on Facebook and other social media websites

Hello and welcome to this Ethics Alert blog which will discuss the 2012 California Formal Ethics Opinion which addresses a lawyer’s obligations when posting on Facebook and other social media websites.  The opinion is Cal. Formal Op. 2012-186 (12/21/12).  The ethics opinion is here: http://ethics.calbar.ca.gov/Portals/9/documents/Opinions/CAL%202012-186%20%2812-21-12%29.pdf

The California State Bar’s Standing Committee on Professional Responsibility and Conduct issued a formal ethics opinion with guidelines and ethical restrictions on California attorneys when using social media.  The opinion states that Facebook and other social media advertising is subject to the same Bar Rules as traditional forms of advertising and under those rules, false and misleading advertising is prohibited.  The opinion also states that the determination of whether the comment is a communication subject to the California Bar Rules is whether it is a message or offer “concerning the availability for professional employment”. 

The opinion reviewed and analyzed the following hypothetical facts and comments:

“Attorney has a personal profile page on a social media website. Attorney regularly posts comments about both her personal life and professional practice on her personal profile page. Only individuals whom the Attorney has approved to view her personal page may view this content (in Facebook parlance, whom she has “friended”).  Attorney has about 500 approved contacts or “friends,” who are a mix of personal and professional acquaintances, including some persons whom Attorney does not even know.

In the past month, Attorney has posted the following remarks on her profile page:

1.         ‘Case finally over. Unanimous verdict! Celebrating tonight.’

2.         ‘Another great victory in court today! My client is delighted. Who wants to be next?’

3.         ‘Won a million dollar verdict. Tell your friends and check out my website.’

4.         ‘Won another personal injury case. Call me for a free consultation.’

5.         ‘Just published an article on wage and hour breaks. Let me know if you would like a copy.’

The opinion concludes that comments 1 and 5 would not be a communication “concerning the availability for professional employment” subject to the California Bar Rules; however, comments 2, 3, and 4 would be communications subject to the Bar Rules.  The opinion also states, in a footnote, that the conclusions in the opinion are not limited to Facebook and would include Twitter, social media and other websites.

Bottom line:  As I have said many times in the past, state Bar Ethics Opinions are not binding and are intended only to provide guidance to lawyers; however, this opinion gives a good overview of the requirements of the California Bar Rules when a lawyer posts on social media and other websites.  The California Bar Rules state that the advertising rules apply to communications “concerning the availability of employment”.  The analysis and conclusions in this opinion would arguably apply to lawyers in other states which have the same or similar language, for example, Rule 4-7.11(a) of The Florida’s Bar advertising rules state that: (t)he terms “advertising” and “advertisement” as used in (the Florida Bar rules) refer to all forms of communication seeking legal employment, both written and spoken.”

Be careful out there!

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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About jcorsmeier

Joseph A. Corsmeier is an “AV” rated attorney practicing in Clearwater, Florida. He concentrates his practice primarily in the areas of defense of attorney disciplinary matters before The Florida Bar, attorney admission matters before the Florida Board of Bar Examiners, and professional license and disciplinary matters before the Boards of the State of Florida. He provides expert analysis and opinion on conflict of interest and other attorney disqualification and legal malpractice issues and he testified as an expert in the Florida courts. He served as an Assistant State Attorney in the Sixth Judicial Circuit from 1986 to 1990 where he prosecuted felonies exclusively from June 1987, and as Bar Counsel for The Florida Bar’s Department of Lawyer Regulation from 1990 to 1998. He also practices in the areas of estate planning and Medicaid qualification, workers’ compensation, and labor law. Mr. Corsmeier is the author of numerous articles for various bar publications, has spoken at numerous local and statewide seminars on various topics, including ethics and professionalism, and was an instructor of legal ethics for paralegals at Rollins College until the Tampa campus closed. He received his undergraduate degree from Florida State University and his J.D. from Mercer University. He is admitted to practice in all Florida Courts, the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, and the Middle District of Florida. He is a member of The Florida Bar, American Bar Association, the Association of Professional Responsibility Lawyers, and the Clearwater and St. Petersburg Bar Associations.
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