By Anne Rudolph
Some attorneys advertise their services by purchasing ads in the newspaper, a trade magazine, and in other more traditional ways that are easily understood to be marketing and advertising. All such marketing and advertising must comply with the Rules of Professional Conduct.
In the modern era, the Rules of Professional Conduct related to marketing and advertising also apply to other forms of communications to the public about an attorney’s services such as social media posts, blogs, and websites.
Rule 7.2 provides that a lawyer may advertise through any written, recorded, or electronic means, including public media. And, Rule 7.1 requires that all such communications must not contain any false or misleading information.
Rule 7.1 provides that “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.” A communication can be misleading if it creates an unjustified expectation to a potential client. (Rule 7.1, comment 4.)
A recent opinion of the Orange County Bar Association addresses whether information listed as “Representative Clients” and “Representative Matters” may be included in an attorney’s biography posted on a firm website. (OC Bar Assn., Formal Op. 2022-01.)
Business and Professions Code section 6068, subdivision (e), requires an attorney to “maintain inviolate the confidence, and at every peril to himself or herself preserve the secrets, of his or her client.”
Rule 1.6 provides that “A lawyer shall not reveal information protected by Business & Professions Code section 6068, subdivision (e)(1) unless the client gives informed consent…”
“Client secrets” has been described as any information obtained by an attorney during the representation which the client requested be kept inviolate and/or the disclosure of which might be embarrassing or detrimental to the client.
It may be that the subject matter of the representation was of a nature that could be considered detrimental or embarrassing to the client, even if the matter was concluded successfully. And, “client secrets” can apply to information that may not seem secret at all, such as a criminal conviction, the existence of which is publicly available.
Opinion 2022-01 states that absent client consent, an attorney’s duty of confidentiality precludes disclosure of information about a former client where the disclosure would be detrimental or embarrassing to the former client or the client has requested that it be maintained confidential.
With respect to including a list of “Representative Clients,” unless identification of the client would be “detrimental and embarrassing,” generally the identity of a client is not confidential.
However, even if the identity of the client may not be confidential and a non-consensual disclosure would not be detrimental or embarrassing to the client, it must be considered whether the manner of listing the identity of a client on the firm website is misleading, or whether client consent is needed to list them. Masking the identity of a client may be required.
Another issue to consider is whether listing a client on a firm website implies that the client is “regularly represented.” Comment 1 to Rule 7.2 allows an attorney to include in advertising the names of clients regularly represented with the client’s consent.
Therefore, an attorney may not state or imply that she regularly represents a particular client absent the client’s informed consent. And, listing a client in a manner that suggests they are a repeat client, if they are not, would be misleading.
An attorney must also be mindful of not including information in the form of “Representative Matters” that would mislead or create an unjustified expectation.
In the absence of a disclaimer or qualifying language, listing a successful outcome on a matter for one client can be seen as a testimonial or endorsement which could create an expectation of a similar successful outcome for a potential client.
Identifying “Representative Clients” and “Representative Matters” on a firm website is a form of advertising and marketing which requires compliance with both the Rules of Professional Conduct and with Business and Professions Code section 6068, subdivision (e).