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 beenmocked as sensationalist and dramatic. Although these advertisements may seem trivial to viewers, the attorneyswho create them must follow strict ethical guidelines.  Broadcasting advertisements on radio andtelevision have already been widely addressed and accounted for by the ethicalrules, but broadcasting has since expanded with the Internet.  Podcasting, specifically, uniquely involves acombination of the Internet and broadcasting. The unique combination of mediums involved in podcasting begs thequestion of, what ethical rules apply to this modern medium? 

Broadcasting on television and radio hasexisted since the Supreme Court decided Batesv. State Bar of Arizona.[1]  Bates,held that a blanket restriction on legal advertisements violated attorneysFirst Amendment rights, and thus allowed for legal advertisements for the firsttime.[2]  The Batescase is the most seminal case on legal advertising but it was decided beforethe 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 thattheir advertisement runs and they are not regulated by a third party such as acable network.   For example, blogging isfree to create and has an unlimited capacity for information.  A blogger can put as much information out onthe web as they like with no limitations on content.  An advertisement broadcast on the radio ortelevision does not have such freedom. They are typically limited to minute long time segments, which arebroadcast and then “disappear” whereas a blog can be left on a screen forunlimited periods of time.  Furthermore,an individual can create, distribute and update their blog on their own withoutany regulation by a third party.  Televisionand radio advertising requires their creators to follow guidelines provided bythe individual that they are buying the advertising time from. 

Secondly, the Internet can be viewedworldwide.  Radio and televisioncommercials are often limited to a certain demographic, this is economicallyfeasible for an attorney and it also guarantees that laws specific to a statewill stay within that state.  Laws aredifferent from state to state and an attorney on radio or television can limittheir message to providers within the state that they practice.  If an attorney wants to put out a televisionadvertisement regarding a class action suit based on personal injury case inNew York they can take precautions to try and limit their audience to NewYorkers and thus avoid presenting state specific laws to the wrong state.  Certainly, an individual visiting New York fromout of state may view this commercial, but by targeting a geographical area theattorney is still taking measures to prevent as much misinformation aspossible.   This level of control overwho can view the advertisement is not present with the Internet, and is key tonot “misleading” the audience.  The“misleading” standard is the crux of the ethical rules governingadvertisements. 

Finally, there are many different mediums thatattorneys can use on the Internet.  Thereis live chat, e-mail, video, audio and now podcasting.  These different mediums require differentanalysis, unlike television and radio, which is generally more limited in itscapacity. 

There is little guidance in the model rulesdirectly addressing the ethical rules involved with podcasting.  The word podcasting doesn’t appear in eitherthe Model Rules, the comments on the Model Rules or in the California Rules ofProfessional 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 2002revisions of the Model Rules.  A closerlook at these rules reveals how the Model Rules apply to podcasts.  Although the above-mentioned concerns arepresent 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 thatlawyers should not seek out clientele and should not advertise.  But, after the Bates case the court acknowledged that this historical concern wasoutweighed by the public interest, specifically, a need for individuals to beinformed and thus able to receive legal services.[3]   Thissentiment, that advertising is important to the legal profession, is reflectedin the comments to Model Rule 7.2 on advertising.[4] 

There is no Model Rule, or California Rule ofProfessional Conduct that expressly defines what constitutes anadvertisement.  However, caselawaddressing the ethical issues surrounding advertisements has included lawyers’websites and blogs.[5]  Thus, it is safe to assume that a podcastwould similarly be considered advertising that must comport with the legal rulesof ethics governing advertisements.

In 2002, the ABA House of Delegatesadopted changes to the Model Rules.  Manyof those changes involve the addition of terms to govern the technology thatthe modern lawyer faces.  The rules havenot been applied to the specific area of podcasting but the changes that havebeen made are indicative of how the court will respond to inquiries overpodcasts in the future.  Most importantto the issue of the regulation of podcasts, section seven of the Model Rulesgoverning “Information about Legal Services” was revised.

Model Rule 7.1 is the first, andbroadest rule governing information about legal services.  It states that, “a lawyer shall not make afalse or misleading communication about the lawyer or the lawyer’s services.”[6]  This rule is applicable to all types ofadvertising, regardless of medium.  Many miscommunicationissues that can arise when an attorney puts out information to a wide audiencefall back on this rule.  Thus it isimportant, at the most basic level, that an attorney is clear and truthful intheir podcast.   

Model Rule 7.2 addresses advertisementsspecifically, and is the most important rule regarding the creation, andethical implications involved with podcasts.[7]  Model Rule 7.2(a) states, “a lawyer mayadvertise services through written, recorded or electronic communication…”[8]  This section of the rule was revised from ispre-2002 version to include the word “electronic” communication.  Thus, this section of the Model Rules is whatallows for advertising via podcasting.

Part (b) to the rule sheds light onthe costs that attorneys are allowed to pay for advertisements orcommunications permitted by the rule.[9]  Lawyers are restricted in what they can payindividuals who recommend the lawyers services.[10]  Most commonly, this section applies to lawyerreferral services.  But the rule is alsoapplicable to paying advertisers who are, in a way, recommending the lawyersservices by assisting them with their advertisement.  Comment five to Model Rule 7.2 states, “Alawyer may compensate employees, agents and vendors who are engaged to providemarketing or client-development services, such as publicists, public-relationspersonnel, business-development staff and website designers.”[11]  Comment 5 to rule 7.2 is key to theproduction of a podcast.  Podcastsrequire technical savvy and thus properly executing a podcast will oftenrequire lawyers to work with non-lawyers. This comment to the rule allows for the attorney to compensate non-lawyerassistants who aid them in the creation of their podcast. 

Record Keeping

Podcasting, blogging and other sources ofinformation on the Internet present a challenge to attorneys who are requiredto 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 orwebsite that is constantly being updated. The sheer amount of information that can be conveyed on an Internetadvertisement, coupled with the ease of editing this information would requireattorneys to save every version of the content. Furthermore, it would be a disservice to the consumer who could bepresented with outdated information because an attorney could not easily updatetheir information due to onerous record-keeping standards. 

The recording rules outlined in the pre-2002version of the Model Rules required that an attorney keep a copy or recordingof an advertisement or communication for two years, as well as a record of whenand where it was used.[12]  But in 2002, the ABA House of Delegatesdeleted this record keeping provision from the Model Rules previously found at ModelRule 7.2(b).  The recording requirementincluded 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 theprovision should be deleted the Ethics 2000 Committee recognized that this wasan onerous standard that had “become increasingly burdensome” and that suchrecords were “seldom used for disciplinary purposes.”[14]  This alleviates the challenges that attorneysface when attempting to record information on the Internet.  However, California still has a recordingrequirement.  Rule 1-400 of theCalifornia Rules of Professional Conduct requires an attorney keep records oftheir advertisements for two years.[15]  

Information conveyed on the Internet can stillbe maintained.  Attorneys can archiveposts or save data to a hard drive.  Itis important that attorneys recognize that legal blogs, websites or podcastsrequire special care and are subject to regulations that non-legal blogs,websites or podcasts are not.  Anattorney should be careful to only publish well thought out information.  Then, if this information requires updates oredits a note could be made at the bottom of the content signifying thechange.  This would solve the issue ofhaving to save multiple versions of content.  

Avoiding Confusion overJurisdiction

New additions to the Model Rules help protectattorneys from misleading consumers across the multijurisdictional reach ofInternet advertising.  As an advertisement,a podcast must include the name and office address of at least one lawyer orlaw firm responsible for its content.[16]  The previous Model Rule regarding thesedisclosures did not require the lawyer to include an address.  According to the recommendations of theEthics 2000 Commission this addition to the 2002 version of the Model Rules wasa direct response to the multijurisdictional nature that the Internet presents.[17] 

A television or radio broadcast can be limitedin scope with regard to the specific audience that it reaches.  Lawyers practicing California law can takeprecautions to try and limit their television or radio audience,geographically, to California.  TheInternet does not provide this geographical limitation.  This could potentially cause great confusionamong individuals who read, or listen to information presented on a podcast bya lawyer that may be inaccurate due to the state in which the lawyer’s practicerelates.  By providing an address theModel Rules seek to avoid this problem by clearly identifying to individualswhere the information pertains.  Thedisclosure of an address may not be clear enough to a layperson to inform themof the different state and federal jurisdictions.  Thus, it may be advisable for an attorney tobe even more clear by including a disclaimer about where the specific laws theyare talking about control. 

III.  Content of the Podcast

The above-mentioned guidelinesgovern what an advertisement is and the format requirements that thoseadvertisements must meet.  The followingrules focus on the content of those advertisements.   What is said in an advertisement is just asimportant as the format of the advertisement.

Client Confidences and theFirst Amendment

Under ABA rule 1.6(a) a lawyer“shall not reveal information relating to the representation of a client unlessthe client gives informed consent.”[18]  There are a few exceptions outlined in thisrule but they relate to breaking confidence out of necessity such as when it isin the public interest.  The comments note,“…trust…is the hallmark of the client-lawyer relationship.”[19]  It is imperative to effective representationfor clients to be entirely truthful to attorneys without having to worry aboutconfidentiality. 

Model Rule 1.6 applies,specifically, to information relating to the representation of a client duringthe lawyers representation of that client.[20]  However, the Model Rules also provide similarstandards of confidentiality to prospective clients and former clients.  ModelRule 1.18(b) makes the duty of confidentiality applicable to informationconveyed by prospective clients.[21]  A prospective client is someone who“discusses with a lawyer the possibility of forming a client-lawyerrelationship.”[22]  Furthermore, the duty of confidentialitycontinues after the client-attorney relationship ends.[23] 

Rule 3-100 of the California Rules ofProfessional Conduct is similar but stresses the importance of confidentialityeven more, referring to Business and Professions Code section 6068 (e)(1), whichstates that it is a duty of a member to “maintain inviolate the confidence, andat every peril to himself or herself to preserve the secrets, of his or herclient.”[24]  This rule also allows for informed consent bythe client for a breach of confidentiality. 

These rules may seem straightforward but,recently, in the context of blogs there has been conflict about clientconfidences.  It is common for attorneysto refer to cases that they’ve worked on or won as evidence to future clientsthat they are competent.  Attorneys canpublish this type of information if the client consents.  Attorneys may also publish this content if theinformation is public.  A lawyer’sability to speak about public information from cases is protected by the FirstAmendment but, if the speech is identified as commercial speech, it can beregulated.  This First Amendmentjustification for breaking a client’s confidences is controversial. 

Recently, the Virginia Supreme Court addressedthe issue of client confidentiality in the context of blogging.  In Hunterv. Virginia State Bar, an attorney blogged about some of his closed casesrevealing client names and case outcomes without obtaining consent from hisclients.[25]  The attorney argued that he had a First Amendmentright to reveal this information because it was public.[26]  The Court held that the attorney did have a FirstAmendment right to discuss public information, however, the Court also ruledthat his speech constituted commercial speech, which could be regulated by theBar.[27]  In Virginia, that meant that the attorney hadto publish a disclaimer on his website.[28]  The conflict that arose in Virginia couldeasily be avoided by keeping client anecdotes limited to those who consent or byusing other means to keep clients anonymous. 

Attorneys can use hypotheticals or other means tokeep their clients identity disguised, in which case they would not needconsent to discuss a case.[29]  Comment four to Model Rule 1.6 cautionsagainst this, clarifying, if a third party could reasonably determine whom the informationpertains to it is in violation of the rule.[30]  Simply changing a name or a fact in ananecdote may not be enough to disguise a client’s identity and can still beconsidered a breach of confidence.  Blogs,websites and podcasts are a unique area where attorneys can share long storiesabout the representation of their clients.  Attorneys must be careful to maintain clientconfidences in these anecdotes unless they have informed consent. 

In conclusion, the Model Rules may nevermention the term podcast but they certainly govern attorneys’ use ofpodcasts.  Recent changes in the rules toaccount for technology show the Ethics Committees recognition that the rulesneed to be updated to allow for new technology. Podcasts are no exception to this view that the use of the Internet bythe legal profession only aids in providing qualified legal service to as manyindividuals as possible.  Nonetheless,attorneys must be careful to treat their professional use of the Internet as anarea that is uniquely regulated. Although, blogs, websites, and podcasts are generally unregulated formsof communication, the legal profession is subject to different standards.  The standards of ethics determined by the ABAmust 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 [email protected].

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. 

[2] Ibid.

[3] Bates v.State Bar of Arizona (1977) 433 U.S. 350

[4] ABA Model Rules Prof. Conduct, rule 7.2

[5] Hunterv. 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)

[10] Ibid.

[11] ABA Model Rules Prof. Conduct, rule 7.2,comment 5

[12] ABA Model Rules Prof. Conduct (1983), rule7.2(b)

[13] ABA Model Rules Prof. Conduct (1983), rule 7.2,comment 5

[14]Ethics 2000 Commission Report, Reporter’sExplanation 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] Hunterv. Virginia State Bar (Va. Feb. 28, 2013) 121472, 2013 WL 749494

[26] Ibid.

[27] Ibid.

[28] Ibid.

[29] ABA Model Rules Prof. Conduct, rule 1.6

[30] ABA Model Rules Prof. Conduct, rule 1.6,comment 4