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Is That Facebook Status Update an Advertisement?

When does your social networking qualify as attorney advertising? That’s the question the State Bar of California’s Standing Committee on Professional Responsibility and Conduct addresses in Draft Formal Opinion Interim No. 10-0001.

The opinion centers around a hypothetical attorney who uses a social media site (e.g. Facebook, Twitter) and connects to a mixture of personal and professional acquaintances, “including some persons whom Attorney does not even know.”  Using the site, the attorney posts status updates like “Just published an article on wage and hour breaks. Let me know if you would like a copy.” and “Another great victory in court today! My client is delighted. Who wants to be next?”

In reviewing the issue, the Committee emphasizes that Rule 1-400 of the Rules of Professional Conduct of the State Bar of California uses the broad term “communications” in defining advertising, and the key to determining if a statement qualifies as a communication under the rule is whether it concerns the lawyer’s “availability for professional employment.”  If a statement is deemed a communication, the lawyer’s obligations with regards to advertising are triggered–including an obligation to preserve the social media communications for two years.

In the above examples, the first statement (“Let me know if you would like a copy.”)  does not qualify as a communication according to the Committee, because it doesn’t concern availability for professional employment.  The second example, however, not only qualifies as a communication (“Who wants to be next?”), it also violates the State Bar’s prohibition on client testimonials (“My client is delighted.”).  The full draft opinion provides three additional examples of social media statements which may, or may not, put a California attorney in hot water.

It isn’t clear when, or if, this opinion will be approved and graduate to a full Formal Opinion. In any event, it should serve as a good reminder that lawyers’ ethical responsibilities can carry over to social media activities.

(Thanks to the Legal Skills Prof Blog for pointing us to this opinion.)