Attorney bios without the risk: Ethical obligations to consider

Attorneys are very busy. When the docket is full, the priority of updating one's online bio may fall to the bottom of the list.

Online bios serve an important role as a valuable marking tool to highlight relevant experience, identify wins or awards, or otherwise credential a lawyer. Online bios are sometimes one of the initial sources of information that individuals like clients or other professionals can use to learn about an attorney's skills and experience. Clients may decide to hire a lawyer based on the content of their bio or even decide not to hire a lawyer whose bio is scant or underwhelming.

Because attorney bios are often reviewed by clients or professionals, may contain information about specific wins or experience taken directly from client cases, and often serve as advertising tools, there are important ethical obligations that attorneys should consider when crafting and maintaining their bios.

Below are some tips to follow to guide attorneys in drafting and updating their bios in ways that comply with their ethical obligations.

Consider client confidentiality

It makes sense that attorneys like to add information to their bios about their successes and wins to showcase their experience and abilities. However, such information may be subject to the rules on client confidences, which rules govern online content via online bios, blogs, social media posts, or any other format. Rule 1.6(a) of the California Rules of Professional Conduct imparts that lawyers "not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) unless the client gives informed consent[.]" Rule 1.6 further requires a lawyer to comply with the duty of confidentiality to "maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." Rule 1.6, Comment [1]. Rule 1.9(c) similarly addresses maintaining client confidentiality of prior representations.

Orange County Bar Association Formal Opinion No. 2022-01 (2022) specifically discussed the ethical obligations involved with attorney bios. The Opinion reminds lawyers that the duty of confidentiality is broader than the attorney-client privilege, meaning even information which is already part of the public record may still fall within the parameters of the duty of confidentiality. See Formal Op. at 2; Cal. Formal Op'n No. 2004-165 (2004); see also Cal. Formal Op'n No. 1993-133 (1993). Thus, just because a fact relating to a representation is publicly available does not mean that the lawyer is free to publish it in a bio absent the client's express or implied consent.

Some lawyers will obtain client consent to use specific information in their bios relating to representations. Alternatively, it may be fruitful to consider describing the relationship and matters in a way that does not reveal confidential information or suggest a guaranteed successful outcome.

Don't be misleading

Because online bios can be considered a form of advertising, attorneys should do their best to comply with the advertising rules.

It is common--and acceptable--for lawyers to include in their online bios the particular areas of law in which they routinely practice. Under the California Rule of Professional Conduct Rule 7.4, however, attorneys should not hold themselves out as "certified specialists" unless the attorney meets the specific requirements for that credentialing. See Rule 7.4(a). Notwithstanding Rule 7.4(a), though, "a lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer may also communicate that his or her practice specializes in, is limited to, or is concentrated in a particular field of law," subject to Rule 7.1.

Additionally, lawyers are prohibited from making false or misleading communications about themselves and their services. See Ca. R. Prof'l Conduct 7.1(a). Communications are considered false or misleading if they contain "a material misrepresentation of fact or law, or omit a fact necessary to make the communication considered as a whole not materially misleading." Id. Rule 7.1 also prohibits "truthful statements that are misleading." Rule 7.1, Comment [3]. Such truthful statements may be misleading where they are presented in a way that "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." Id.

Notably, even an accurate statement about a past representation could still be viewed as misleading to prospective clients if the statement suggests that the results could be repeated for another client. The comments to Rule 7.1 indicate that in order to avoid conclusions about a lawyer where there is "no reasonable factual foundation," lawyers generally do not publish information about a specific amount of a damage award, the lawyer's record in obtaining favorable results, and client endorsements. Lawyers who describe the outcomes of their cases in this way (which is more common for plaintiff's-side lawyers) may also consider using a disclaimer or other clarification to note that the outcome of any single representation is not guaranteed and will depend on the facts and circumstances.

Keep it current

Bios can be updated regularly to communicate key information that interests prospective clients and helps the lawyer stand out. It can also be helpful to have another colleague - or the law firm's marketing professionals - review the bio to provide feedback on how it reads and to check for typos or other potential errors.

Additionally, these errors may run afoul of ethical obligations, such as advertising rules. For instance, if a biography is outdated and no longer reflects the lawyer's current experience, it could not only misrepresent their expertise but also give the impression that the lawyer is out of touch and lacks recent cases, new expertise, published articles, or speaking engagements.

Industries change and lawyers' practices evolve. Attorney bios should keep up with those changes.