Ethics Tip of the Month - November 2013

Blog People

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A lawyer wants to have a blog, both to explain his cases and to comment on issues that affect his practice. He also hopes to attract clients that are faced with issues that relate to his area of practice. However, he is worried about potential ethical problems.

Under what circumstances will blogging be considered advertising under Rules 7.1 Communication Concerning a Lawyer's Servicesand 7.2 Advertising and thus be subject to the state’s restrictions on advertising?

And just how much can he say in the blog? Can he disclose and discuss information about pending or completed client matters?

 

Many lawyers have weblogs or “Blogs” in which they post information about trends in the law that relate to their area of practice. When you think about it, this is not an entirely new phenomenon. While not a perfect analogy, consider the Bog People http://en.wikipedia.org/wiki/Bog_body of ancient Europe. Although it was not their intention, to this day they reveal intricate details about their lives from past millennia, including what they had for lunch and their sense of fashion which as it turns out would be very suitable items for posts on modern day social media sites. And just like the bog people, modern day blogs have staying power, remaining on the web indefinitely so lawyers should be careful about what they post.

Advertising or Free Speech?

A recent case from the supreme Court of Virginia, Hunter v. Virginia State Bar 744 S.E. 2d 611 (2013) considered whether a lawyer’s blog in which he commented on cases he had handled constituted political as opposed to commercial speech and was thus entitled to the protections of the First Amendment. The Court held that the blog constituted commercial speech and was subject to regulation under Rule 7.2 Advertising of the Virginia Rules of Professional Conduct because:

• Hunter's motivation for the blog was admittedly at least part economic.

• The posts predominantly described cases in which he received a favorable result for his client.

• The posts referenced a specific product—his lawyering skills—in that 22 of the 25 case summaries described cases he successfully handled.

• Hunter named his law firm in addition to himself in 19 of these posts.

• The blog is on his law firm's commercial website (Hunter & Lipton PC) rather than an independent site dedicated to the blog.

• The website uses the same frame for soliciting clients as it does for the blog.

• The blog does not allow for discourse about the cases, whereas noncommercial blogs often do so by allowing readers to post comments.

- 29 Law. Man. Prof. Conduct 161 (2013)

(Note that the Virginia Rules advertising rules were amended effective July 1 st 2013. Rule 7.2 was eliminated, and elements of it were incorporated into Rules 7.1 and 7.3. Explanatory notes about these revisions are available here:)

Therefore, Hunter was required to include disclaimers in the blog stating that it was lawyer advertising and that past results were no indication of similar results in future cases.

Client Confidences: Completed or Pending matters

The Virginia Supreme Court also held that an interpretation of Rule 1.6 that would prohibit a lawyer from disclosing information about what transpired in a public judicial proceeding involving completed client matters would violate the First Amendment. The Court stated:

…To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom. Thus, the circuit court did not err in concluding that the VSB's interpretation of Rule 1.6 violated the First Amendment. - Hunter at 503.

This is somewhat of a departure from the historical view of what is considered to be confidential information, where all information relating to the representation even if it was in the public record, was protected. The rationale behind the prohibition was to maintain public confidence in the legal profession so that if personal or embarrassing information came to light from the public record, at least it would not be the client’s lawyer who was publicizing it.

Despite this ruling, lawyers should be very cautious before writing about matters that clients may well prefer be kept secret. Also, check your local rules. Different state versions of Rule 1.6 may require a heightened level of confidentiality.

For further discussion of the circumstances under which publicly available information can be considered to be confidential client information under Rule 1.6, See the discussion under the heading Publicly available or previously disclosed Information from the chapter entitled Confidentiality: Protected information; (last updated in 2012) as it appears at page 55:311 of the ABA/BNA Lawyers’ Manual on Professional Conduct.

State Bar Ethics Opinions

So long as the primary purpose of the blog is not to solicit clients, recent ethics opinions from the New York State Bar Association have stated that blogs are not to be considered as lawyer advertising. See, e.g. New York state bar opinion 967 (2013) a digest of which states as follows:

A lawyer whose previous hitblognext hit is not intended to solicit clients and does not discuss legal topics is not engaging in advertising within the meaning of the lawyer ethics rules even though the title of the previous hitblognext hit makes clear that he is a lawyer. The previous hitblognext hit is therefore not subject to the retention and preservation requirements of the lawyer advertising rules. Opinions 873, 899, 918; Rules 1.0(a)(c), 7.1(k).

Note that the third and fourth sentences of the Comment to Rule 7.1 of the New York Rules of Professional Conduct has a provision that states as follows:

…Topical newsletters, client alerts, or blogs intended to educate recipients about new developments in the law are generally not considered advertising. However, a newsletter, client alert, or blog that provides information or news primarily about the lawyer or law firm (for example, the lawyer or law firm’s cases, personnel, clients or achievements) generally would be considered advertising.

See AlsoNew York State Bar Opinions 912 ( A lawyer may host or participate in a previous hitblognext hit that publishes factual, accurate criticism of another lawyer's professional conduct.) and 873 (2011), the digest of which states:

The Rules of Professional Conduct do not prohibit an attorney from offering a prize to join the attorney's social network as long as the prize offer is not illegal, but if the primary purpose of the prize offer is the retention of the attorney, then it will constitute an "advertisement" and will be subject to the rules governing lawyer advertising. If the prize offer is an advertisement, and if it is targeted to specific recipients, and if a significant motive is pecuniary gain, it will also constitute a "solicitation" and will be subject to additional requirements and restrictions.

The New York Committee also made the observation even if the lawyer’s ultimate goal was business development for his practice, offering a prize to join his social networking sire was no more lawyer advertising than if the lawyer were to join a civic organization such as the Kiwanis or a local chamber of commerce to expand his social circle even if his ultimate goal was to develop his practice

 

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The application of the rules of professional conduct to lawyer blogs is a developing area in the law governing lawyers. While the Hunter case provides some guidance, as always check your local rules of professional conduct and ethics opinions for jurisdiction specific information. Your state or local bar association may also be able to help.

 

© 2013 by the American Bar Association

 

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