Ethical Roadmap to the New Legal Marketplace
LACBA Update, January 2016
By Teresa J. Schmid, counsel on ethics and professional responsibility, and consultant in management and public policy. She practices in Los Angeles and is a member of LACBA's Professional Responsibility and Ethics Committee. The views expressed are her own. For more information about Ms. Schmid, please visit her LinkedIn profile.
A lawyer learns through a posting on a prospective client’s Facebook page that the person has a legal problem within the lawyer’s practice area and is not currently represented. The lawyer has a business Facebook page and submits a “friend” request to the prospective client, who reviews the lawyer’s profile and accepts. The lawyer then sends a personal message to the prospective client through the Facebook connection saying, “I am accepting new clients and would be happy to assist you. Please contact me for a free consultation.”
To many California lawyers, this scenario just feels dangerous, like solicitation, improper advertising, or one of the 16 “communications” proscribed by Rule 1-400 of the California Rules of Professional Conduct and its Standards as being presumptive rule violations. Facebook and other social media represent a new legal marketplace. California’s rules governing legal advertising and solicitation are falling behind, becoming barriers to entry for both lawyers and prospective clients. It’s time for a roadmap.
In the beginning, there was Bates et al. v. State Bar of Arizona
Two former legal aid lawyers sought to provide affordable legal services to clients of modest means who did not qualify for legal aid, making an early use of the term “legal clinic.” They quickly realized that their clinic could not survive if their target market could not find them, and they placed a small newspaper advertisement. Disciplinary proceedings ensued under Arizona’s former Disciplinary Rule 2-101(B), which categorically banned lawyer advertising. The U.S. Supreme Court invalidated the rule, holding that lawyer advertising is constitutionally protected commercial speech.2
Eleven years later, the court considered whether a state bar could prohibit lawyers from sending targeted mailings to individuals known to have specific legal needs. In Shapero v. Kentucky Bar Association
a Kentucky lawyer applied to the state’s Attorneys Advertising Commission for approval of a letter he proposed sending to prospective clients known to have had foreclosure suits filed against them, which the Commission denied. In a “read our lips” moment, the court noted that, while it had upheld a rule prohibiting in-person solicitation by lawyers,4
its cases had never distinguished among modes of written advertising to the general public; if the writing is neither false nor deceptive, it is protected commercial speech.5
Even if the letter is directed to an individual prospective client, it is not improper solicitation. “A letter, like a printed advertisement (but unlike a lawyer), can readily be put in a drawer to be considered later, ignored, or discarded.”6
California’s regulation of lawyer advertising and solicitation reacted to Shapero
quickly. In defining the terms “advertise” and “advertisement” as applied to legal advertising, Business and Professions Code Section 6157(c) expressly excludes communications directed to a specific person. Rule 1-400(B)(2)(a) defines “solicitation” as a communication that is delivered in person or by telephone; writings do not qualify. The hypothetical Facebook message above, which is directed to a specific person and not delivered in person or by telephone, is therefore neither an advertisement nor a solicitation.
However, Rule 1-400 also regulates other communications. Rule 1-400(A) defines a “communication” as any message or offer concerning an attorney’s availability for professional employment that is directed to “any former, present, or prospective client.” If it is “unsolicited correspondence from a member or law firm” as defined by Rule 1-400(A)(4), it is a presumptive violation under Standard 5 of Rule 1-400(D)(4) if it is also transmitted by “mail or equivalent means” and “does not bear the word ‘Advertisement,’ ‘Newsletter’ or word of similar import in 12 point type on the first page.” Presumably, the Facebook message would constitute a “communication” but would avoid the presumptive violation if it self-identified as an advertisement in 12 point type.
Further attempts to fit the square peg of social media into the round hole of 20th century rules raise even more questions. For example, how can the attorney ensure that the prospective client receives the message, which may be delivered on a cell phone, in 12-point type? If the prospective client publicly posts information about a legal need on Facebook and accepts the attorney as a “friend,” is the attorney’s subsequent message “unsolicited correspondence,” or is it invited? And if Section 6157(c) holds that messages to individuals are not advertisements, isn’t labeling such a message as an advertisement a false statement prohibited by Rule 1-400(D)(1)?
In attempting to frame lawyers’ use of social media within the constraints of Rule 1-400, the State Bar’s Standing Committee on Professional Responsibility and Conduct may be inadvertently contributing to the confusion by applying both Business and Professions Code Section 6157 and Rule 1-400 to the same communication7
when actually they are mutually exclusive. By definition, 6157 does not apply to messages directed to individuals, per subsection (c); 1-400 applies only to messages directed to individuals (“any former, present, or prospective client,” expressed in the singular) under subsection (A). The distinction matters, since only communications falling under Rule 1-400 are subject to the Rule’s 16 presumptive violations. In a further twist, Rule 1-400(A)(3) purports to apply to any “advertisement…directed to the general public or any substantial portion thereof,” disregarding Section 6157(c) altogether.
The resulting regulatory drift is perhaps most pronounced in COPRAC Formal Opinion 2012-186, which presented a hypothetical involving a lawyer posting messages on the lawyer’s own Facebook page. The opinion identified the tension between Section 6157 and Rule 1-400 but expressly declined to take a position on it. The opinion then discussed a series of individual postings, interpreting each separately by its content as to whether it would be a communication subject to Rule 1-400. Lost in the shuffle was the linchpin holding of Shapero
: in assessing the potential for overreaching and undue influence in a truthful communication, it is the mode of the communication in the first instance, and not the content, that makes all the difference.8
The confusion is chilling lawyers’ participation in social media as a legal marketplace, thereby also depriving consumers of information they need for responsible decision-making about legal services. This is the core hazard of which the Supreme Court warned at length in both Bates
. In early 2016, the State Bar’s Second Commission for the Revision of the Rules of Professional Conduct will consider changes to Rule 1-400. Ripe for discussion is how the rule can be reconciled with the statute, case law, and even current practice. Lawyers can no longer afford to think of social media as innovation, for in fact we’re late to the table. With luck, it may not be too late for us to pull up a chair and sit down.
Bates et al. v. State Bar of Arizona (1977) 433 U.S. 350.
“Commercial speech that is not false or deceptive and does not concern unlawful activities may be restricted only in the service of a substantial government interest, and only through means that directly advance that interest.” Zauderer v. Office of Disciplinary Counsel (1985) 471 U.S. 626, 627.
Shapero v. Kentucky Bar Association (1988) 486 U.S. 466.
Ohralek v. Ohio State Bar Assn. (1978) 436 U.S. 447.
486 U.S. at 473-74.
486 U.S. at 476.
COPRAC Formal Opinion 2001-155 applying both to attorneys’ website.
486 U.S. at 475.
LACBA's Professional Responsibility and Ethics Committee welcomes new inquiries from LACBA members regarding ethical issues or concerns about professional responsibilities. The identity of the inquirer is kept confidential within the committee. The committee, however, does not publish formal opinions that are the subject of any pending litigation involving the inquirer. If you have an ethical question that you would like the committee to consider, you can mail your written inquiry to Los Angeles County Bar Association, Professional Responsibility and Ethics Committee, P.O. Box 55020, Los Angeles, CA 90055-2020, or e-mail your inquiry marked “Confidential” to Member Services at firstname.lastname@example.org