YourABA: October 2012
YourABA October 2012 Masthead
 

Beware: Blogs can be legal minefields

Legal blogs can create ethical gray areas for lawyers. An expert panel discussed some of the problems blogs present and potential solutions in the ABA CLE “Is Your Legal Blog Compliant? Ethical Considerations in the Wake of Hunter v. Virginia State Bar.”

Hunter v. Virginia State Bar

(2011) has brought the subject of legal blogs to the forefront. The case is “the first time in which a legal blog has been challenged under the Rules of Professional Conduct in relation to advertising restrictions,” says Micah Buchdahl, president of the law marketing consultancy HTMLawyers.

The lawsuit involves Horace Hunter, of Hunter & Lipton, who maintains a blog on his firm’s website. Hunter blogs about news that is critical to the criminal-justice system and noteworthy cases his firm has won.

Exercise caution with client testimonials. Some states prohibit them; others allow them but require disclosures.

“I received a letter from the ethics counsel of the Virginia State Bar saying that I was advertising cumulative case results, and I needed to have a disclaimer on my blog,” Hunter says. The disclaimer needed to say that “case results depend on a variety of factors unique to each case, and case results do not guarantee or predict a similar result in any further case undertaken by the lawyer.”

Hunter responded by saying that the blog was not an advertisement and that the bar should closely look at its content. “The basis of our argument is simple,” he says. “Despite the fact that there are clear marketing purposes to writing a blog, the problem is that the content of the blog on its face is pure political speech. It’s not commercial speech, and the Virginia State Bar cannot regulate it.” But the bar took the position that his blog is “still self-publicity — you’re still marketing yourself,” Hunter says.

A three-judge panel heard Hunter’s case in the Portsmouth Circuit Court in Virginia and upheld the determination that Hunter violated Virginia State Bar Rule 7.1 and Rule 7.2 regarding communication about a lawyer’s services and advertising by not having a disclaimer. The panel overturned the finding that he violated Rule 1.6, which governs confidentiality of client information, with his blog posts.

“The key to this decision is that the information the lawyer blogged about was publicly available information,” American Bar Association staff counsel Will Hornsby wrote at The Boundaries of Legal Marketing. Hornsby also notes that Virginia’s Rule 1.6 standard varies from ABA’s Model Rule 1.6 — and other states’ counterparts to this rule — which says “a lawyer shall not reveal information relating to the representation of a client” without the client’s informed consent.

“Seemingly, ‘information relating to the representation’ is far broader than ‘secrets and confidences’ in the marketing arena,” Hornsby wrote. “So, folks should be cautious about giving weight to the Hunter outcome. It is quite possible, if not likely, the decision would have been different in a Model Rule state.”

Ultimately, the Hunter case points to the importance of law firms exercising caution with blogs. Before creating a blog, do your homework, says Molly DiBianca, an associate with Young Conaway Stargatt & Taylor. “You have to be knowledgeable if you’re going to start a blog,” DiBianca says. “I would not do that until you’ve been reading them fiercely and religiously for months at a clip.”

Remember that a blog is a website, and a website falls under the Rules of Professional Conduct as they refer to advertising and marketing issues, Buchdahl of HTMLawyers says. “States go onto websites and blogs and do keyword searches for no-no words and find every example of those on various pages,” he says. “Look and make sure you’re not utilizing language in a way that violates the rules, using words such as ‘expertise’ or ‘specialization.’”

Unlike Hunter, DiBianca has avoided discussing clients’ cases on her blog. “How do you know what you’re writing is based purely on the case and not what you’ve learned elsewhere? I don’t want to upset my clients,” she says. “My clients don’t want to focus on, highlight or live with the cases against them.

“If you’re going to be as risk-averse as possible, you should not blog about client cases you’ve handled because of the possible risk that you could disclose [sensitive] information.”

Also, use care with client testimonials. “States are all over the map on that,” says Thomas Spahn, a partner with McGuireWoods. “Some prohibit them; some allow them but require disclaimers. Consult your state rules on testimonials.”

The Hunter case will now go to the Virginia Supreme Court, where the issues will again be briefed and argued. 

This CLE was sponsored by the ABA Law Practice Management Section, the Section of Environment, Energy and Resources, Solo, Small Firm and General Practice Division (fomerly known as the General Practice, Solo and Small Firm Division), the Young Lawyers Division, and the Center for Professional Responsibility.

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