The State Bar seeks public comment on Proposed Formal Opinion Interim No. 12-0003 (Attorney Directory and Rating Websites).
Deadline: August 5, 2019
The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct. In accordance with State Bar policy and procedure, the Committee shall publish proposed formal opinions for public comment (See, State Bar Board of Trustee Resolutions July 1979 and December 2004. See also, Board of Trustee Resolution November 2016).
On May 10, 2018, the California Supreme Court issued an order approving 69 new Rules of Professional Conduct, which will go into effect on November 1, 2018. Information about the new rules is available at the State Bar website. Proposed Formal Opinion Interim No.16-0003 interprets the new Rules of Professional Conduct.
Proposed Formal Opinion Interim No.12‑0003 considers: what are an attorney’s ethical obligations regarding a profile of the attorney posted on a professional directory website maintained by a third party?
The opinion interprets rules 7.1, and 7.2 of the Rules of Professional Conduct of the State Bar of California; and Business and Professions Code section 6106.
The opinion digest states: An attorney is not responsible for the content of an attorney’s profile on a professional online directory and rating website created and maintained by a third party. However, if the attorney chooses to exercise control over the profile’s content by “adopting” the profile on the directory itself or otherwise using the profile to market the attorney’s practice, the attorney becomes responsible for its content. When an attorney uses the profile to market the attorney’s practice, the profile becomes a communication about the attorney’s services by or on behalf of the attorney, and consequently the attorney must comply with the relevant advertising rules. This means the attorney cannot post or induce another to post content that is false or misleading and must undertake reasonable efforts to correct any such content.
In addition, if third party testimonials are posted on the profile, the attorney should take reasonable steps to ensure that such testimonials are not presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters. An appropriate disclaimer or qualifying language often avoids creating unjustified expectations. An attorney who abandons a profile on a third party directory has no further obligation to correct false or misleading content contained in the profile. An attorney abandons the profile by taking reasonable steps to alert the public that the attorney is no longer monitoring the profile such as posting a notice of that fact on the profile as well as ceasing to use it in marketing the attorney’s practice.
At its June 2, 2017 meeting and in accordance with its Rules of Procedure, the State Bar Standing Committee on Professional Responsibility and Conduct approved Proposed Formal Opinion Interim No.12-0003 for a 90-day public comment distribution. Subsequently, at its February 22, 2019 meeting, COPRAC revised the opinion in response to public comment, and updated the opinion to conform to the new Rules of Professional Conduct that took effect on November 1, 2018. And, in accordance with its Rules of Procedure, COPRAC approved Proposed Formal Opinion Interim No.12-0003 for an additional 60-day public comment distribution. During its June 7, 2019 meeting, COPRAC further revised the opinion in response to public comment and approved Proposed Formal Opinion Interim No.12-0003 for an additional 45-day public comment.
Proposed Formal Opinion Interim No.12-0003
State Bar Standing Committee on Professional Responsibility and Conduct
August 5, 2019
Office of Professional Competence, Planning and Development
State Bar of California
180 Howard Street
San Francisco, CA 94105