Navigating the State Bar of California advertising rules can be a confusing process. If you make a mistake, you might expose yourself to disciplinary actions. For this reason, hire an internet marketing company that understands the bar rules.
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The first step when preparing to launch a new website or internet marketing strategy is to read all of the bar rules that might apply.
Attorney advertising in California was previously governed by the California Rules of Professional Conduct 1-400. The rules for attorney websites and advertisements changed on November 1, 2018, when the California Rules of Professional Conduct became effective.
The changes were approved by the California Supreme Court on May 10, 2018, by Supreme Court Administrative Order 2018-05-09. The new rules are listed as Rules 7.1, 7.2, 7.3, 7.4, and 7.5.
The California Rules of Professional Conduct govern attorney and law firm content published on the internet and attorney or law firm advertising or marketing websites. These rules state general requirements all lawyers and law firms must abide by when engaging in advertising and solicitation.
Although California's Rules of Professional Conduct do not specifically state website marketing is included in the advertising and solicitation rules, the State Bar Formal Ethics Opinion 2001-155 addressed online advertising.
According to the Formal Ethics Opinion 2001-155, an attorney's website is governed by rules regulating attorney print advertising in the California Rules of Professional Conduct. The Formal Opinion also states an attorney's website is not considered a solicitation but is considered a communication.
A communication under the California Rules of Professional Conduct is any message or offer regarding the availability of professional employment made by a lawyer or law firm to any prospective, former or present client, including any advertisement, regardless of the medium, directed to the public.
The former Rule 1-400(F) of the California Rules of Professional Conduct required attorneys to retain recordings or copies of communication for two years so that the information would be available to the State Bar of California upon request. Formal Opinion 200-155 explained that the requirement applied to all pages on the website, in addition to every website revision.
The communication or solicitation on an attorney's website may not contain any information that is false, deceptive, or that is likely to be perceived as confusing, deceptive, or misleading to the public.
Generally, false, misleading, or deceptive information contains statements about fees, services, results, or self-laudatory statements. Terms that may indicate a phrase is deceptive or misleading include, "best," most," lowest," "will," and "better."
Both the old Rule 1-400 and the new Rule 7 are focused on the attorney’s obligation to make fair and honest statements. For this reason, attorney advertisements or solicitations must be truthful and not misleading.
The old Rule 1-400(D)(2-3) explained that the attorney website also cannot leave out any facts or information that are necessary to make the information not misleading to the public.
Under the new Rule 7, the attorney is prohibited from making any false or misleading communications, regardless of the form of the communication. As explained in Rule 7.1, even true statements might be misleading and would, therefore, could violate the lawyer's ethical obligations.
For example, Comment  to Rule 7.1 explains that truthful statement may be misleading if it "omits a fact necessary to make the lawyer's communication considered as a whole not materially misleading" or if it creates a "substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer's services for which there is no reasonable factual foundation."
Most attorney advertisements in California must identify at least one attorney’s name responsible for the advertisement even if a firm is identified. See 1-400, standard 12, and 7.2(c). Under Rule 7.2(c), both the name and address of at least one responsible attorney must be identified.
Some types of written advertisements by the attorney must say: “advertisement” or “solicitation” or use similar words that are readily identifiable. See 1-400(D)(4) and 7.3(c).
Every marketing company knows that the most persuasive content includes case results, testimonials, or endorsements. When done correctly, this information can be independently verified.
The California bar rules for attorney advertising have special provisions dealing with testimonials, case results, or achievements.
Comment  to the new Rule 7.1 provides that even a truthful statement regarding the lawyer’s achievements on behalf of clients or former clients, or a testimonial or endorsement, may be misleading and thus a violation if “presented so as to lead a reasonable person to form an unjustified expectation” that they could obtain the same results.
If the advertisement or solicitation guarantees or warrants a result is a presumptive violation and deemed a “false or misleading communication.” See Rule 7.1, comment 2.
In general, it is good practice for every attorney or law firm to have a disclaimer or disclosure on their website to prevent false expectations of the viewer.
Additionally, under Rule of the California Rules of Professional Conduct, Rule 1-400(D)(4), the attorney's communication or solicitation must clearly, expressly or by context indicate the information is merely a communication or solicitation, so the viewer does not misconstrue the information as a legal relationship or legal advice.
Standard (2) of the previous Rule 1-400 provided that any communication which contains a testimonial or endorsement of the lawyer must contain an express disclaimer that such communication does not constitute a guarantee or prediction of results. Without the disclaimer, the violation is presumed.
The current Rule 7.2 does not require any disclaimer to be included, but it does note that a disclaimer might be necessary to avoid “creating unjustified expectations.”
Rule 9.35 of the 2019 California Rules of Court define a "certified specialist" as a California attorney who holds a current certificate as a specialist issued by the State Bar of California Board of Legal Specialization or any other entity approved by the State Bar to designate specialists.
The California State Bar establishes and administers a program for certifying legal specialists and it authorized to certify other entities to certify legal specialists under rules adopted by the Board of Trustees of the State Bar.
Rule 1-400(D)(6) prohibited an attorney or law firm in California for claiming to be "certified specialist" unless the attorney held a current certificate issued by the California Board of Legal Specialization or any other entity that has been accredited by the State Bar and designates specialists under the Board of Governors' standards. Effective on November 1, 2018, Rule 1-400(D)(6) was replaced with Rules 7.4 on Communication of Fields of Practice and Specialization.
Because of these rules, attorneys and law firms should be careful when using terms like "expert," "specialist," or "specialized," which are reserved for the board certified specialist as defined in Rule 9.35.
If a lawyer in California is certified as a specialist in the California Board of Legal Specialization or some other type of permissible specialization, they may say so. However, websites cannot make general statements that the law firm is board certified.
Additionally, a lawyer can say they are available to practice in certain areas of the law, but they generally cannot claim they have special competence or experience in a legal area. Likewise, it is acceptable to say that the attorney is "focused" on a particular practice area.
California's Current Rules of Professional Conduct - Visit the website of the California Bar to find the Rules of Professional Conduct that took effect on November 1, 2018. The California Supreme Court approved the new rules on May 10, 2018, through Supreme Court Administrative Order 2018-05-09. This section of the website includes PDF downloads of all the rules, a table that cross-references the old and new rules, and the history of the development of the current rules. Prior to the new rules taking effect, the most important bar rules for online attorney marketing were found in Rule 1-500 Agreements Restricting a Member's Practice and Rule 1-400 which governed communication and solicitation advertising rules for lawyers and law firms.
State Bar Formal Ethics Opinion 2001-155 on Attorney Internet Advertising - The formal ethics opinions for attorney and law firm internet advertising and website marketing from the Standing Committee on Professional Responsibility and Conduct of the State Bar of California.
California Bar Ethics Opinions - COPRAC is a standing committee of the State Bar Board of Trustees. The Committee's primary responsibility is to issue advisory ethics opinions related to the California Rules of Professional Conduct. Read the complete text of advisory opinions regarding the ethical lawyer conduct in hypothetical situations throughout California. Although the opinions issued by the State Bar of California Committee on Professional Responsibility and Conduct are not binding, they are frequently cited by the California Bar Court Review Department, the California Court of Appeal and the California Supreme Court. The ethics opinions cover a wide variety of topics including limitations for foreign attorneys, conflicts of interests, and closing a practice.
Promoting Business under the Advertising Rules - Article by Robert K. Sall published in the Los Angeles County Bar Association website explaining the history of bar rules in California for a legal advertising campaign.
Advertising in the Electronic Age - Find a self-study activity approved for Minimum Continuing Legal Education (MCLE) credit by the State Bar of California for a one hour credit for legal ethics. The study guide was published by Wendy L. Patrick in the California Bar Journal, an official publication of the State Bar of California. The article discusses the emerging issue for advertising online and ethical considerations when maintaining a website for the law firm.
At Lawyer Legion, we developed this online attorney directory to help the public find a lawyer in the State of California. This online attorney directory also provides information on legal organizations and lawyer referral services located throughout the state.
Our parent company, Internet Lava, LLC, builds websites and internet marketing strategies for lawyers across the United States. Contact us to find out more about the services we can provide to your law firm.
This article was last updated on Friday, January 10, 2020.