**Updated 2/24/16: The Bar has issued its proposed opinion, which addresses most – but not all – of the concerns I’ve identified below.**
The California State Bar is seeking comment on a proposed ethics opinion on lawyer blogging – or more specifically, the conditions under which the California Bar would consider a lawyer’s blog subject to the attorney advertising rules.
As with its 2012 ethics opinion on social media postings, the California Bar uses specific examples of the practice in question. The draft opinion also doesn’t completely ignore the important first amendment constraints on the Bar’s ability to regulate. Good on the Bar for doing that; too many state ethics regulators don’t bother with this.
The Bar offers four hypothetical examples of types of “blogs.” These include:
A. A stand-alone “blog” that has no interactivity and serves as nothing more than a puff piece for the attorney’s case results.
B. A law blog that lives on a page on a law firm’s website, and contains the analysis and discussion one would expect to see on a blog . . . but closes every post with the statement “for more information, contact so-and-so.”
C. A law blog that lives on a standalone site, and contains the analysis and discussion one would expect to see on a blog . . . but closes some posts with the statement “if you have questions about your divorce, contact so-and-so.”
D. A blog about jazz that links to the lawyer’s site.
The Bar’s Committee concludes that the first three types of blogging are subject to the advertising rules, but the last one is not.
The Committee is half-right. Example A is commercial speech, and example D is not.
But what about B & C? Unfortunately, after acknowledging the first amendment constraints on regulation, the Committee fails to adequately apply the test for mixed-content advertising and editorial speech.
In the case of a blog that occupies a page on the lawyer’s website, the Committee concludes that this factor alone (not even accounting for the consistent message to contact the author of the post) is sufficient to render the blog “advertising” subject to the advertising rules. While this *might* be true in some cases, it’s too much to say that it applies across the board to all blogs that happen to reside on the same domain as a law firm website. Regulators would need to analyze, in each case, whether the combination of content, format, and motive is sufficient to render the communication commercial speech.
That said, it’s possible the Commission means that having a lawyer blog on a law firm website plus the inclusion of the consistent “contact me if you have further questions” message renders the blog advertising. But it would be nice if they said so – and I also don’t believe that message is necessarily a commercial one.
And as for blogs on stand-alone sites, in which the occasional post refers readers to contact the author about their individual cases, the Committee is really going too far to find that such a message bootstraps the entire blog into being advertising. It may be the case that such a message – because it refers to a reader’s own case, and not questions about the editorial content – would render the post in which it appears commercial speech. However, the idea that a few isolated message such as this would “infect” the entire blog and all of its content is well beyond the Supreme Court’s test for determining whether mixed-content speech is treated as “commercial.” It’s even beyond the only-in-California Kasky test for mixed-content speech.
Why Should We Care?
Some would say, who gives a rip? Attorneys can just slap an “attorney advertising” disclaimer on their blogs and be done with it. But putting aside the efficacy of that, the perverse fetish lawyers seem to have for disclaimers, and the fact that attorneys should not have to worry about including some asinine disclaimer on everything they write, there is a bigger issue at play here: the chilling effect that this type of over-regulation has on free expression. And that chilling effect not only impacts the attorneys who would otherwise freely express themselves, but also the extent to which consumers can obtain information about the quality and nature of legal services and providers.
Subjecting attorney blogs to advertising regulation opens up an entirely new avenue for collateral attack on attorney speech. After all, under traditional speech analysis, bloggers can express themselves freely, without worrying overmuch about hyperbole and misstatement. And that’s a good thing; it’s part of the “more speech” solution we as Americans have chosen for our system of expression.
But if a blog is subject to bar regulation as “advertising,” lawyers suddenly need to worry about their expression being regulated under the lesser standard of intermediate scrutiny. Their competitors can file grievances with the bar over what would ordinarily be editorial content, and as “advertising” that writing will also be open to attack on publicity rights grounds. Lawyers likely lose the protection of California’s anti-SLAPP law to defend their free speech rights, as well as most fair use defenses to copyright actions. In short, they’ll need to consider the fact that anything they write is putting their license at risk. Under such a regime, it’s a fair bet that many legal bloggers will censor themselves.
What the Opinion is Missing
The Commission’s opinion is also notable for not choosing as an example a far more common case: the law blog – whether a page on a law firm website or a standalone site – that doesn’t close any posts with an explicit invitation to contact the author, but prominently displays contact information for the lawyer or law firm. Nearly every reputable legal blog I can think of is set up this way, offering some way – telephone, email, twitter, etc. – to contact the lawyer-blogger.
The opinion does suggest, in its discussion of example “C” (law blogger on a stand-alone site) that the inclusion of a link from the blog to the attorney’s website is not enough, on its own, to render the blog attorney advertising. However, the opinion would be better if it expanded on this point, and had a more in-depth discussion of the types of “contact me” messages that could render otherwise non-advertising content commercial speech.
As discussed above, there is a fundamental difference between these two messages at the end of a blog post:
“For more information, contact Joe Smith.”
“For questions about your legal matter, contact Joe Smith.”
The latter is advertising; the former is not. But what of email addresses, chat boxes, hyperlinks and telephone numbers? Do such passive invitations to contact turn a blog post into advertising?
I’m fairly certain the answer is “NO,” at least as an across-the-board rule. While there certainly could be an accumulation of factors that would turn a blog into advertising, the availability of contact information alone would not meet the test.
And, frankly, even the explicit invitation to contact the attorney about one’s legal matter should not make the entire blog commercial speech. It’s easy enough to parse out the advertising message (“contact me”), apply the advertising rules to that and leave the rest of the blog alone.
This is an important point, and the Commission misses it entirely in its analysis. The test for mixed-content speech contains a secondary test for expression where the commercial message is “inextricably intertwined” with the editorial content. In such cases, the whole thing is treated as editorial speech. The flip side of this test is this: if the messages can be separated, they are to be, with commercial speech analysis (and the potential for Bar regulation) applying to the commercial message, and the editorial expression subject only to any regulation that might survive strict scrutiny.
The “contact me with questions about your divorce case” message is certainly not inextricably intertwined with a blog post about divorce; it’s merely appended on to the end. As such, while the invitation to contact should be treated as an advertising message, the lesson of Riley is that it should not infect the entire post – or the entire blog – with its commercial character.
In any event, here’s the proposed opinion; comments are due by March 23, 2015. I’ve submitted comments along the lines of this post, and I’d encourage any readers to do the same.
And feel free to contact me if you have any questions.