The State Bar seeks public comment on Proposed Formal Opinion Interim No. 12-0003 (Attorney Directory and Rating Websites). Deadline: May 14, 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 Tab 5.1, Article 2, Section 6(g) of the State Bar Board Book, the Committee shall publish proposed formal opinions for public comment.
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. 12-0003 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 sections 6106, and 6157, et seq.
The opinion digest states: An attorney is not responsible for the content of her 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” her profile on the directory itself or otherwise using the profile to market her practice, she becomes responsible for its content. When an attorney uses her profile to market her practice, her profile becomes a “communication” on behalf of the attorney, and an “advertisement” for her professional services, and consequently she must comply with the relevant advertising rules and the State Bar Act. This means she cannot post or induce another to post content that is false, misleading, or deceptive 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, misleading, or deceptive content contained in the profile. An attorney abandons the profile by taking reasonable steps to alert the public that she 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 her 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.
Proposed Formal Opinion Interim No. 12-0003
State Bar Standing Committee on Professional Responsibility and Conduct
May 14, 2019
Angela MarlaudOffice of Professional Competence, Planning and Development State Bar of California180 Howard Street San Francisco, CA 94105-1639Phone: 415-538-2116Fax: 415-538-2171E-mail: email@example.com