Ethics In Ads And Social Media Ca Ny Wa
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Transcript of Ethics In Ads And Social Media Ca Ny Wa
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Ethical Issues in Online Legal Advertising & Social Media
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CLE Credits
California & New York lawyers• Certificates and evaluation forms available after program
Washington lawyers• Fill out sign-in sheet; include bar #
CLE Written Materials Available at:
http://avvoblog.com/cle-documents/
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Introduction Josh King
Vice President, Business Development & General Counsel, Avvo, Inc. Josh started his career as a litigator in San Mateo, CA. Since then, he has worked in-house in a variety of legal and non-legal roles, including serving as General Counsel of Cellular One of San Francisco and Vice President, Corporate Development at AT&T Wireless. Josh has an undergrad degree from the University of Oregon, a J.D. from UC, Hastings College of the Law and is a member of the California Bar.
Twitter: @joshuamkingEmail: [email protected]
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Overview
Legal basis for ad regulation First Amendment ABA Model Rules, CA and other state regulation
Online & Social Media Issues – 10 Ways Attorney Ad Rules are Implicated Online
Q&A and Closing Thoughts
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Attorney Ad Regulation
Central Hudson (1980) – restrictions on commercial speech subject to “intermediate scrutiny.” Is the ad related to lawful activity and not misleading? Is the governmental interest substantial?
• if so . . .
Does the regulation directly advance the asserted governmental interest?
Is the regulation more extensive than necessary to serve that interest?
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Developments Post-Central Hudson
Nearly two dozen Supreme Court cases
Steady expansion of protection for advertisers
Growing call for elevating commercial speech to “strict scrutiny” standard enjoyed by other types
Some states react with more restrictive rules
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ABA Model Rules Rule 7.1: No “False or Misleading”
communications Test is whether a communication contains a “material
misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”
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ABA Model Rules Rule 7.3(a): Prohibitions on in-person solicitation
(including “real time electronic contact”) where “significant motive” is pecuniary gain. Exceptions for family, close personal or prior professional
relationship Rule 7.3(c): All forms of solicitation must include
the words “Advertising Material.”
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CA Advertising Rules - Bar
Rule 1-400: Generally applies to all advertising communications, regardless of medium
Similar to ABA Model Rules, but more detail “Communication” vs. “Solicitation”
In-person or telephonic solicitation generally prohibited Both must avoid deception, etc. Restrictions on stating that one is a “certified specialist”
Numerous state bar “standards” describe forms of communication presumed to violate 1-400
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CA Advertising Rules - Legislative
CA Business & Professions Code §§6157 – 6159.2 Much overlap with Bar Ethics Rules But – more questionable examples of
communication techniques than Bar Rules
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New York
Highly restrictive rules
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Other States
Progressive trend: Alabama, Maine
Regressive trend: Florida, Louisiana
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A Bad Fit? How Attorney Ad Rules are Implicated Online
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#1 - Attorney Web Sites
Are attorney web sites “communication” or “solicitation”?
CA Ethics Opinion 2001-155: Not “Solicitation”
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#2 Online Ads & Sponsored Listings
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#3 – Social Media, Directory Profiles
Yes, to the extent information is controlled by you and used for professional purposes.
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#4 Endorsements & Testimonials
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#5 - IM & Twitter – Solicitation?
CA Ethics Opinion 2004-166: Communication by e-mail or in chat room is not in-person or telephonic solicitation
But note - many other states, including FL, MI, OR & VA, take the opposite view (as does the ABA Model Rule 7.3(a))
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#6 – Vulnerable Parties
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#7 - Extrajudical Statements
Lawyers don’t forfeit their 1st Amendment rights
But – May be subject to ethical precepts that keep them from engaging in what otherwise might be constitutionally protected speech.
“Substantial likelihood of material prejudice” in relation to adjudicative proceedings.
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#8 - Results Obtained – Disclaimer?
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#9 - “Advertisement” Disclosure? Requirement to say
“advertisement” on first page of communication
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# 10 - Keep “all copies” for 2 Years?
CA Rule 1-400(F): A member shall retain for two years a true and correct copy or recording of any communication made by written or electronic media. Upon written request, the member shall make any such copy or recording available to the State Bar, and, if requested, shall provide to the State Bar evidence to support any factual or objective claim contained in the communication.
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Conclusion
Questions & Comments MCLE certificates of attendance and evaluation
forms