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.

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