The State Bar seeks comment on a nonbinding advisory opinion concerning attorneys’ ethical responsibilities concerning profile pages on online third-party directories.
Deadline: 5 p.m., Sept. 15, 2017
NOTE: Publication for public comment is not, and shall not, be construed as a recommendation or approval by the Board of Trustees of the materials published.
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.
Discussion/Proposal
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 rule 1-400 of the Rules of Professional Conduct of the State Bar of California; and Business and Professions Code sections 6157, et seq. and 6106.
The opinion digest states:
An attorney is not responsible for the content of her profile on a professional online directory and rating website maintained by a third party unless she either exercises “control” over the profile’s content by “adopting” her profile on the directory itself in order to market her practice or by otherwise using the profile to market her practice such as by posting a link to the profile on her own site. 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 Rule 1-400 of the California Rules of Professional Conduct and Article 9.5 (Legal Advertising) of the State Bar Act (Business and Professions Code, § 6157, et seq.). This means she cannot post, and must make reasonable efforts to correct, any content which is false, deceptive, or which would tend to confuse, deceive, or mislead the public.
If third-party testimonials are posted on the profile, the attorney should take reasonable steps to ensure that the disclaimer set forth in Standard (2) of rule 1-400(E) is included. Similarly, if any such testimonial contains untrue factual information, she must take reasonable steps to correct or disavow such information.
An attorney who abandons a profile on a third-party directory has no further obligation to correct misleading content contained in the profile. An attorney abandons the profile by deciding to no longer monitor the profile or use it in marketing her practice and taking reasonable steps to demonstrate such decision.
At its June 2, 2017 meeting and in accordance with its Rules of Procedure, the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 12 0003 for a 90-day public comment distribution.
State Bar Standing Committee on Professional Responsibility and Conduct
Deadline
5 p.m., Sept. 15, 2017
Direct comments to
Andrew Tuft Office of Professional Competence, Planning, and Development State Bar of California 180 Howard Street San Francisco, CA 94105-1639 Phone: 415-538-2172 Fax: 415-538-2171 E-mail: andrew.tuft@calbar.ca.gov
