Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.


Change is Coming for Lawyer Advertising

Those who advertise — that is most of us because if you have a website or have a presence on Facebook or LinkedIn you are advertising — should consider the proposed rules. The proposed rules I discuss below have been approved by the Rules Revision Commission and are out for public comment. The deadline to submit comments is September 27, 2016.

As most of us know we are governed both by the Rules of Professional Conduct which are initially promulgated by the State Bar Board of Trustees to the California Supreme Court for approval, and by certain portions of the Business and Professions Code. Of course, the B&P code is the product of the state legislature with the governor’s approval. Often these overlap as they do in the advertising rules, so you have to review both if you have an ethical question. The current proposed revisions only apply to the rules of professional conduct, although the commission has often taken into account the B&P code.

One over-arching goal of the rules revisions is to bring them in line as much as possible with the American Bar Association’s Model Rules of Professional Conduct. This includes the ABA’s number system so the current rules governing advertising and solicitations go from Rule 1-400 to Rules 7.1 to 7.5.

The current rules are governed by first deciding whether what is being scrutinized was actually a “communication” with distinctions such as saying, “I just won a case,” deemed not a communication for commercial gain, but saying “I just won a case and therefore, you should call me,” was a covered communication. This was considered potentially misleading because we all know all cases are different.

Under the proposed rules “all communications of any type whatsoever about a lawyer’s services” are covered under the rule. And all communications are subject to the prohibition as to whether it “contains an untrue statement, or a material misrepresentation of fact or law, or omits a fact necessary to make the communication considered as a whole not materially misleading.”

Here are some particular “no nos”:

  • a guarantee, warranty, or prediction;
  • truthful statements that are misleading – omits facts;
  • “No fee without recovery” probably a bad idea, unless you explain exactly what it means with the advertising;
  • a lawyer’s achievements on behalf of clients or former clients, without explaining specifically how your case may be different;
  • unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers;
  • services in a language other than English, without explaining that it may not be the attorney who speaks the foreign language.

Under the proposed rule, “a lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer may also communicate that his or her practice is limited to or concentrated in a particular field of law. . . .” As under the current law, however, you can’t say you are a specialist in a particular field without being certified by the state bar.

Finally, under the proposed rule there is an abolition of the requirement that you maintain a copy of your advertising for two years. This includes the problematic issue of maintaining copies of any changes you make to your website. Under the proposed rule it is one thing you don’t have to worry about.

If you want to comment on these proposed rules, go to the state bar website at:http://ethics.calbar.ca.gov/Committees/RulesCommission2014/ProposedRules.aspx

-- Michael Crowley

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**