In 1994, the California Legislature passed a bill which specifically addressed, in part, advertising by lawyers via electronic media. The act specifically takes into account networks, defining electronic medium as "television, radio, or computer network."
The Act begins with "legislative findings". The legislature found that lawyer advertising is commercial speech which is subject to regulation, particularly to protect the public from false or misleading information, and that advertising via electronic media is "uniquely pervasive and intrusive." On the other hand the legislature also found that the public was in need of legal information including the type often found in legal advertising.
The Act adds section 6158 to the business and professional code which requires that the message of an advertisement via electronic media, when taken as a whole, "may not be false, misleading or deceptive, and . . . must be factually substantiated." To assist in applying this standard to multi-media presentations now possible, the section states that "The message means the effect in combination of the spoken word, sound, background, action, symbols, visual image, or any other technique employed . . . ." Although this prohibition fully covers the area of electronic multimedia advertising, it is somewhat vague. What types of presentations would be considered misleading? Would a message stating that a firm won twelve personal injury claims for over $100,000 each be misleading even if it were true?
The Act provides some assistance to this type of question. It establishes rebuttable presumptions that certain messages are false, misleading, or deceptive. The classes so considered are messages that either: (1) provide the outcome of a case without an adequate factual background, (2) depict accident or injury scenes, and (3) refer to money received by a client in a case, or (4) refer to a potential recovery for a prospective client. To be included in areas (3) or (4) the references do not have to be to specific dollar amounts. The Act states that references to "a specific dollar amount, characterization of a sum of money, monetary symbols, or the implication of wealth."
In addition to requiring that electronic advertising not be false or misleading, California also requires that certain disclosure be made, while noting that such disclosure does not necessarily erase the presumptions of the false or misleading character of information of the type discussed above. If an advertisement refers to the outcome of a case, the Act requires that the advertisement either disclose sufficient facts to justify the result or state that "the result portrayed in the advertisement was dependent on the facts of that case, and that the results will differ if based on different facts." (The Alexander Law Firm is an example of a California firm that has put examples of cases won on one of its pages. One synopsis states: "Trial attorney for plaintiff in Aiello v. Bank of America Realty, for injuries suffered by a 35-year- old operating engineer. Before trial plaintiff offered to settle his claim for $45,000. The defendant responded by offering $7,500. The final judgment plus interest paid to Mr. Aiello after trial totaled $277,871." )
The Act also establishes a "safe harbor" for electronic advertisement. The Act provides that the provision of information such as specialization, fees for routine services, articles that the attorney has published, and foreign language ability will be presumed to comply with the statute. Along with this substantive safe harbor, California also provides a procedural safe harbor. The law provides that if any person complains of an advertisement they must serve a copy of the complaint on the advertiser, and that if the advertisement is withdrawn within nine days, there will be no further action on the complaint. In practice however, the advertiser has much longer to withdraw the material. If the advertiser ignores the complaint, he has seven days to produce a copy of the advertisement and the Bar Association has up to twenty-eight days to review the complaint. If the Bar determines that "substantial evidence of a violation exists", the lawyer still has an additional three days to withdraw the advertisement and still be safeguarded from further action. In practice therefore, an attorney has 31 days from the date of the initial complaint to safely withdraw the advertisement.
If an attorney does not take advantage of these safe harbors, he could be subject to a penalty of up to $5,000 per broadcast that violates the Act. This money is to be paid into a "'Client Security Fund' maintained by the State Bar." The Act makes it clear that this remedy is in addition to any other cause of action that might exist. The Act also requires that a copy of all advertisements be kept for one year.