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Attorney’s Guide to Ethical Marketing: California

 

This post is part of the Attorney’s Guide to Ethical Marketing, a series of posts (and eventually an eBook) that provides attorneys with a summary of key ethical rules for marketing across all fifty states, and the US territories.  If you want to be notified when your jurisdiction is covered, subscribe to The Dead Drop, my monthly newsletter covering updates from this site and beyond on marketing, law, and the psychology of persuasion.

• Relevant Citations: Cal. RPC §§ 7.1-7.5; Cal. Bus. & Prof. Code, §§ 6150–6159.2; Cal. Bus. & Prof. Code §§ 17000 et seq

BPC §§ 6150-6156 (solicitation);

BPC §§ 6157-6159.2 (advertising).

BPC, §§ 17000 et seq. While the RPC specifically reference BPC §§ 17000 et seq. (Unfair Trade Practices) there are no specific provisions in that law applicable to attorneys as to advertising for their legal practices.

• Limitations on Direct Contact with Prospective Clients (Y/N): Yes

• Permitted Forms of Marketing

• Traditional Media (Y/N): Yes

• Inbound Marketing (Y/N): Yes

• Social Media Marketing (Y/N): Yes

• Email Marketing (Y/N): Yes, in part. Direct solicitation of clients (except those not fitting within the limited familial exception) is prohibited, but the RPC does not prohibit general emails providing information to a subscribing audience. See RPC 7.3(b) and (e).

• PPC Advertising (Y/N): Yes

• Mandatory Language (Y/N): Yes. Unless a communication is apparent by its nature to be an advertisement, it must be marked as such on the outside of the writing or at the beginning and end of the electronic communication. See RPC 7.3(c). Additionally, all advertising must include the name and address of one lawyer or the law firm responsible for the advertisement. See RPC 7.2(c).

• Opt-Out Requirement (Y/N): Yes See RPC 7.3(b)(1).

• Retention and Record Keeping Requirement (Y/N): Yes (1 Year). See BPC § 6159.1

• Non-Surname Branding (Y/N): Yes

• Date of Last Revision: 2018 (RPC); 2006 (BPC §§ 6150-6156); 1994 (BPC §§ 6157-6159.2) 1941 (BPC §§ 17000-17101).

Comments:

Perhaps unsurprisingly, California is uniquely intensive in its regulation of the practice of law in general and advertising related to the practice of law, specifically. However, it is not well organized in its regulation, with some parts of the regulation occurring in the Rules of Professional Conduct, others in attorney-focused regulations within the California Business and Professional Code (“BPC”), and lastly others in the unfair competition portion of the BPC. See Cal. RPC §§ 7.1 et al.; BPC §§ 6157-6159.2.; and, BPC §§ 17000-17101.

California criminalizes direct solicitation at hospitals, jails, and other specified facilities. See BPC § 6152. It also provides for specific rules concerning the use of dramatization in attorney advertising, prohibiting the use of actors portraying an attorney, a client (without disclosure that the client is being portrayed by an actor), or the use of a celebrity spokesperson without disclosure of that celebrity’s title. See BPC § 6157.2 (truly, this is a missed opportunity for the Kardashians). Additionally, not only does California have a rather common prohibition against false and misleading advertising, it flips the burden of proof with respect to advertising, creating a rebuttable presumption that all advertising is false or misleading, with certain exceptions as to content. See BPC §§ 6157.1 and 6158 (with respect to advertising on the internet) and BPC § 6158.1 (with respect to the evidentiary presumption at trial).

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Todd Brogowski

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