by Leslie O'Callaghan
The following article discusses the various legal issues related to online advertising for lawyers..
I. Introduction
Radio and television advertising has often been
mocked as sensationalist and dramatic.
Although these advertisements may seem trivial to viewers, the attorneys
who create them must follow strict ethical guidelines. Broadcasting advertisements on radio and
television have already been widely addressed and accounted for by the ethical
rules, but broadcasting has since expanded with the Internet. Podcasting, specifically, uniquely involves a
combination of the Internet and broadcasting.
The unique combination of mediums involved in podcasting begs the
question of, what ethical rules apply to this modern medium?
Broadcasting on television and radio has
existed since the Supreme Court decided Bates
v. State Bar of Arizona.[1] Bates,
held that a blanket restriction on legal advertisements violated attorneys
First Amendment rights, and thus allowed for legal advertisements for the first
time.[2] The Bates
case is the most seminal case on legal advertising but it was decided before
the Internet existed.
The Internet has a high information capacity,
meaning users are unlimited in the content they put on the Internet. Unlike advertisements on television and radio,
lawyers advertising on the Internet are not charged by the length of time that
their advertisement runs and they are not regulated by a third party such as a
cable network. For example, blogging is
free to create and has an unlimited capacity for information. A blogger can put as much information out on
the web as they like with no limitations on content. An advertisement broadcast on the radio or
television does not have such freedom.
They are typically limited to minute long time segments, which are
broadcast and then “disappear” whereas a blog can be left on a screen for
unlimited periods of time. Furthermore,
an individual can create, distribute and update their blog on their own without
any regulation by a third party. Television
and radio advertising requires their creators to follow guidelines provided by
the individual that they are buying the advertising time from.
Secondly, the Internet can be viewed
worldwide. Radio and television
commercials are often limited to a certain demographic, this is economically
feasible for an attorney and it also guarantees that laws specific to a state
will stay within that state. Laws are
different from state to state and an attorney on radio or television can limit
their message to providers within the state that they practice. If an attorney wants to put out a television
advertisement regarding a class action suit based on personal injury case in
New York they can take precautions to try and limit their audience to New
Yorkers and thus avoid presenting state specific laws to the wrong state. Certainly, an individual visiting New York from
out of state may view this commercial, but by targeting a geographical area the
attorney is still taking measures to prevent as much misinformation as
possible. This level of control over
who can view the advertisement is not present with the Internet, and is key to
not “misleading” the audience. The
“misleading” standard is the crux of the ethical rules governing
advertisements.
Finally, there are many different mediums that
attorneys can use on the Internet. There
is live chat, e-mail, video, audio and now podcasting. These different mediums require different
analysis, unlike television and radio, which is generally more limited in its
capacity.
There is little guidance in the model rules
directly addressing the ethical rules involved with podcasting. The word podcasting doesn’t appear in either
the Model Rules, the comments on the Model Rules or in the California Rules of
Professional Conduct. Recently,
application of the Model Rules to the Internet has caused revisions and new opinions;
most notably blogging and social networking sites have received attention. These revisions are included in the 2002
revisions of the Model Rules. A closer
look at these rules reveals how the Model Rules apply to podcasts. Although the above-mentioned concerns are
present with regard to advertising on the Internet, specifically podcasting,
the Model Rules can still be applied to podcasts.
II. Podcasts and the Model Rules governing Advertisements
Historically, the Model rules stated that
lawyers should not seek out clientele and should not advertise. But, after the Bates case the court acknowledged that this historical concern was
outweighed by the public interest, specifically, a need for individuals to be
informed and thus able to receive legal services.[3] This
sentiment, that advertising is important to the legal profession, is reflected
in the comments to Model Rule 7.2 on advertising.[4]
There is no Model Rule, or California Rule of
Professional Conduct that expressly defines what constitutes an
advertisement. However, caselaw
addressing the ethical issues surrounding advertisements has included lawyers’
websites and blogs.[5] Thus, it is safe to assume that a podcast
would similarly be considered advertising that must comport with the legal rules
of ethics governing advertisements.
In 2002, the ABA House of Delegates
adopted changes to the Model Rules. Many
of those changes involve the addition of terms to govern the technology that
the modern lawyer faces. The rules have
not been applied to the specific area of podcasting but the changes that have
been made are indicative of how the court will respond to inquiries over
podcasts in the future. Most important
to the issue of the regulation of podcasts, section seven of the Model Rules
governing “Information about Legal Services” was revised.
Model Rule 7.1 is the first, and
broadest rule governing information about legal services. It states that, “a lawyer shall not make a
false or misleading communication about the lawyer or the lawyer’s services.”[6] This rule is applicable to all types of
advertising, regardless of medium. Many miscommunication
issues that can arise when an attorney puts out information to a wide audience
fall back on this rule. Thus it is
important, at the most basic level, that an attorney is clear and truthful in
their podcast.
Model Rule 7.2 addresses advertisements
specifically, and is the most important rule regarding the creation, and
ethical implications involved with podcasts.[7] Model Rule 7.2(a) states, “a lawyer may
advertise services through written, recorded or electronic communication…”[8] This section of the rule was revised from is
pre-2002 version to include the word “electronic” communication. Thus, this section of the Model Rules is what
allows for advertising via podcasting.
Part (b) to the rule sheds light on
the costs that attorneys are allowed to pay for advertisements or
communications permitted by the rule.[9] Lawyers are restricted in what they can pay
individuals who recommend the lawyers services.[10] Most commonly, this section applies to lawyer
referral services. But the rule is also
applicable to paying advertisers who are, in a way, recommending the lawyers
services by assisting them with their advertisement. Comment five to Model Rule 7.2 states, “A
lawyer may compensate employees, agents and vendors who are engaged to provide
marketing or client-development services, such as publicists, public-relations
personnel, business-development staff and website designers.”[11] Comment 5 to rule 7.2 is key to the
production of a podcast. Podcasts
require technical savvy and thus properly executing a podcast will often
require lawyers to work with non-lawyers.
This comment to the rule allows for the attorney to compensate non-lawyer
assistants who aid them in the creation of their podcast.
Record Keeping
Podcasting, blogging and other sources of
information on the Internet present a challenge to attorneys who are required
to maintain records of their communications.
By it’s nature, the Internet is designed to function as an up to date,
constantly evolving source of information.
It would be difficult for an attorney to save every version of a blog or
website that is constantly being updated.
The sheer amount of information that can be conveyed on an Internet
advertisement, coupled with the ease of editing this information would require
attorneys to save every version of the content.
Furthermore, it would be a disservice to the consumer who could be
presented with outdated information because an attorney could not easily update
their information due to onerous record-keeping standards.
The recording rules outlined in the pre-2002
version of the Model Rules required that an attorney keep a copy or recording
of an advertisement or communication for two years, as well as a record of when
and where it was used.[12] But in 2002, the ABA House of Delegates
deleted this record keeping provision from the Model Rules previously found at Model
Rule 7.2(b). The recording requirement
included in the pre-2002 version of the Model Rules existed as a means to
“facilitate enforcement” of the Model Rules governing advertising.[13] In coming to the conclusion that the
provision should be deleted the Ethics 2000 Committee recognized that this was
an onerous standard that had “become increasingly burdensome” and that such
records were “seldom used for disciplinary purposes.”[14] This alleviates the challenges that attorneys
face when attempting to record information on the Internet. However, California still has a recording
requirement. Rule 1-400 of the
California Rules of Professional Conduct requires an attorney keep records of
their advertisements for two years.[15]
Information conveyed on the Internet can still
be maintained. Attorneys can archive
posts or save data to a hard drive. It
is important that attorneys recognize that legal blogs, websites or podcasts
require special care and are subject to regulations that non-legal blogs,
websites or podcasts are not. An
attorney should be careful to only publish well thought out information. Then, if this information requires updates or
edits a note could be made at the bottom of the content signifying the
change. This would solve the issue of
having to save multiple versions of content.
Avoiding Confusion over
Jurisdiction
New additions to the Model Rules help protect
attorneys from misleading consumers across the multijurisdictional reach of
Internet advertising. As an advertisement,
a podcast must include the name and office address of at least one lawyer or
law firm responsible for its content.[16] The previous Model Rule regarding these
disclosures did not require the lawyer to include an address. According to the recommendations of the
Ethics 2000 Commission this addition to the 2002 version of the Model Rules was
a direct response to the multijurisdictional nature that the Internet presents.[17]
A television or radio broadcast can be limited
in scope with regard to the specific audience that it reaches. Lawyers practicing California law can take
precautions to try and limit their television or radio audience,
geographically, to California. The
Internet does not provide this geographical limitation. This could potentially cause great confusion
among individuals who read, or listen to information presented on a podcast by
a lawyer that may be inaccurate due to the state in which the lawyer’s practice
relates. By providing an address the
Model Rules seek to avoid this problem by clearly identifying to individuals
where the information pertains. The
disclosure of an address may not be clear enough to a layperson to inform them
of the different state and federal jurisdictions. Thus, it may be advisable for an attorney to
be even more clear by including a disclaimer about where the specific laws they
are talking about control.
III. Content of the Podcast
The above-mentioned guidelines
govern what an advertisement is and the format requirements that those
advertisements must meet. The following
rules focus on the content of those advertisements. What is said in an advertisement is just as
important as the format of the advertisement.
Client Confidences and the
First Amendment
Under ABA rule 1.6(a) a lawyer
“shall not reveal information relating to the representation of a client unless
the client gives informed consent.”[18] There are a few exceptions outlined in this
rule but they relate to breaking confidence out of necessity such as when it is
in the public interest. The comments note,
“…trust…is the hallmark of the client-lawyer relationship.”[19] It is imperative to effective representation
for clients to be entirely truthful to attorneys without having to worry about
confidentiality.
Model Rule 1.6 applies,
specifically, to information relating to the representation of a client during
the lawyers representation of that client.[20] However, the Model Rules also provide similar
standards of confidentiality to prospective clients and former clients. Model
Rule 1.18(b) makes the duty of confidentiality applicable to information
conveyed by prospective clients.[21] A prospective client is someone who
“discusses with a lawyer the possibility of forming a client-lawyer
relationship.”[22] Furthermore, the duty of confidentiality
continues after the client-attorney relationship ends.[23]
Rule 3-100 of the California Rules of
Professional Conduct is similar but stresses the importance of confidentiality
even more, referring to Business and Professions Code section 6068 (e)(1), which
states that it is a duty of a member to “maintain inviolate the confidence, and
at every peril to himself or herself to preserve the secrets, of his or her
client.”[24] This rule also allows for informed consent by
the client for a breach of confidentiality.
These rules may seem straightforward but,
recently, in the context of blogs there has been conflict about client
confidences. It is common for attorneys
to refer to cases that they’ve worked on or won as evidence to future clients
that they are competent. Attorneys can
publish this type of information if the client consents. Attorneys may also publish this content if the
information is public. A lawyer’s
ability to speak about public information from cases is protected by the First
Amendment but, if the speech is identified as commercial speech, it can be
regulated. This First Amendment
justification for breaking a client’s confidences is controversial.
Recently, the Virginia Supreme Court addressed
the issue of client confidentiality in the context of blogging. In Hunter
v. Virginia State Bar, an attorney blogged about some of his closed cases
revealing client names and case outcomes without obtaining consent from his
clients.[25] The attorney argued that he had a First Amendment
right to reveal this information because it was public.[26] The Court held that the attorney did have a First
Amendment right to discuss public information, however, the Court also ruled
that his speech constituted commercial speech, which could be regulated by the
Bar.[27] In Virginia, that meant that the attorney had
to publish a disclaimer on his website.[28] The conflict that arose in Virginia could
easily be avoided by keeping client anecdotes limited to those who consent or by
using other means to keep clients anonymous.
Attorneys can use hypotheticals or other means to
keep their clients identity disguised, in which case they would not need
consent to discuss a case.[29] Comment four to Model Rule 1.6 cautions
against this, clarifying, if a third party could reasonably determine whom the information
pertains to it is in violation of the rule.[30] Simply changing a name or a fact in an
anecdote may not be enough to disguise a client’s identity and can still be
considered a breach of confidence. Blogs,
websites and podcasts are a unique area where attorneys can share long stories
about the representation of their clients. Attorneys must be careful to maintain client
confidences in these anecdotes unless they have informed consent.
In conclusion, the Model Rules may never
mention the term podcast but they certainly govern attorneys’ use of
podcasts. Recent changes in the rules to
account for technology show the Ethics Committees recognition that the rules
need to be updated to allow for new technology.
Podcasts are no exception to this view that the use of the Internet by
the legal profession only aids in providing qualified legal service to as many
individuals as possible. Nonetheless,
attorneys must be careful to treat their professional use of the Internet as an
area that is uniquely regulated.
Although, blogs, websites, and podcasts are generally unregulated forms
of communication, the legal profession is subject to different standards. The standards of ethics determined by the ABA
must be abided by, even for this freeform type of communication.
Leslie O'Callaghan is a contributor to the B.E.S.T. Law Blog published by ARC Law Group. She's a recent graduate of the University of San Francisco School of Law, where she was the Executive Articles Editor of the USF Maritime Law Journal. Leslie can be reached at lcocalla@gmail.com.
You understand and agree that use of this blog does not in any way create or establish an attorney-client relationship between you and any ARC Law Group attorney. You should recognize that the information provided on this blog is provided for your general information and should not be relied on as legal advice and is not a substitute for direct consultation with an attorney about a specific legal problem.
[1] Bates v.
State Bar of Arizona (1977) 433 U.S. 350.
[3] Bates v.
State Bar of Arizona (1977) 433 U.S. 350
[4] ABA Model Rules Prof. Conduct, rule 7.2
[5] Hunter
v. Virginia State Bar (Va. Feb. 28, 2013) 121472, 2013 WL 749494
[6] ABA Model Rules Prof. Conduct, rule 7.1
[7] ABA Model Rules Prof. Conduct, rule 7.2
[8] ABA Model Rules Prof. Conduct, rule 7.2(a)
[9] ABA Model Rules Prof. Conduct, rule 7.2(b)
[11] ABA Model Rules Prof. Conduct, rule 7.2,
comment 5
[12] ABA Model Rules Prof. Conduct (1983), rule
7.2(b)
[13] ABA Model Rules Prof. Conduct (1983), rule 7.2,
comment 5
[14]Ethics 2000 Commission Report, Reporter’s
Explanation of Changes, rule 7.2(c)
[15]CA Rules Prof. Conduct, rule 1-400
[16] ABA Model Rules Prof. Conduct, rule 7.2(c)
[17]Ethics 200 Commission Report, rule 7.2(c)
[18] ABA Model Rules Prof. Conduct, rule 1.6(a)
[19] ABA Model Rules Prof. Conduct, rule 1.6,
comment 2
[20] ABA Model Rules Prof. Conduct, rule 1.6,
comment 1
[21] ABA Model Rules Prof. Conduct, rule 1.18(b)
[22] ABA Model Rules Prof. Conduct, rule 1.18(a)
[23] ABA Model Rules Prof. Conduct, rule 1.9(c)(2)
[24] CA Rules Prof. Conduct, rule 3-100
[25] Hunter
v. Virginia State Bar (Va. Feb. 28, 2013) 121472, 2013 WL 749494
[29] ABA Model Rules Prof. Conduct, rule 1.6
[30] ABA Model Rules Prof. Conduct, rule 1.6,
comment 4
