I’ve been speaking and writing about the intersection of social media and the attorney advertising rules for over seven years now. I often speak in California, and years ago I seized upon something happening in California to illustrate one of my themes. It goes something like this:
I tell attorneys that they need to understand the constitutional limits of the RPCs when it comes to attorney speech regulation, because they can’t very well look to the RPCs for specific guidance . Communications media are just evolving far too quickly. I would then point to an effort ongoing in California to align that state’s RPCs more closely to the ABA Model Rules, and note that the process had started a decade earlier, before anyone had even thought of Facebook, Twitter, etc. You can’t possibly expect the output of such a deliberative process to speak specifically to any particular communication platform, I would say. 1
It then became a 11-year process. Then 12 years. Then 13, and finally 14 years.
And now it’s over, with nothing to show for the effort but an order of the California Supreme Court kicking the whole thing back for a re-do. As in “back to square one.”
One the one hand, I like that this keeps my rhetorical method alive. If anything, the state’s indecisiveness just reinforces the fact that attorneys can’t possibly hope for the RPCs, which change at a glacial pace, to speak specifically to new forms of communication.
But on the other hand, I feel bad for all of the leaders in the California ethics bar who worked so hard over the years on these changes. Sheesh. At this rate their grandkids are going to be leading the charge to get the California rules squared away. 2
- Ironically, however, California HAS issued the most useful – and specifically detailed – ethics opinion relating to when attorney use of Facebook and Twitter crosses the line into regulated attorney advertising. ↩
- And while I can’t speak for the substance of most of the proposed rule changes, I would love to see California get rid of the plainly-unconstitutional communications “standards” found in RPC 1-400. ↩