While there are blogs on legal ethics, there’s not much direction on the legal ethics of blogs. Thus far, blogging has not generated state ethics opinions or case law to shed light on what blogging lawyers should do.
In this respect, we are at the same place we were 10 years ago when assessing the ethics of e-mail and law firm Web sites.
Lessons of the Past Decade
Much of the initial dialogue surrounding e-mail and Web sites in the mid-1990s revolved around their uses for marketing purposes. Lawyers asked their state ethics committees for advisory opinions on whether it was ethical to advertise on the Internet. Uniformly, the responses came that it is ethical to advertise on the Internet as long as the way the lawyer advertises on the Internet is ethical. While that may seem like circular reasoning that fails to provide much direction, it is actually very helpful. These opinions made it clear that lawyers must comply with the existing rules, regardless of how well, or how poorly, those rules fit.
This notion was reinforced when one lawyer figured out how to spam before spamming even existed. Lawrence Canter, rather famously, was sanctioned by the Tennessee disciplinary agency for violating three ethics rules after he sent thousands of e-mails advertising his legal services to members of electronic discussion lists and Usenet groups. Under the Tennessee rules, those e-mails should have been labeled as advertisements, should have been filed with the state and should have avoided a reference to a specialized area of practice.
Where Does This Put the Blogosphere?
From our experiences with Web sites and e-mails, we can anticipate opinions that will require blogging lawyers to abide by the existing ethics rules governing client development—if they use their blogs for marketing purposes. That’s a big if in the blogosphere. Lawyers who blog may have the intent of generating business, but if the blog’s content does not seek out that business, the ethics rules may not apply at all.
In other words, the rules apply to commercial speech. If a lawyer exercises his or her right to the free speech of political discourse, but does nothing to beckon business, then some cases indicate the rules do not apply. Lawyers who use blogs to demonstrate their capacity, rather than proclaim it, may ultimately be unencumbered by the limitation of those rules governing client development.
Nevertheless, the ethics of blogging remains a gray area. Lawyers should proceed with caution until the states interpret the application of the rules.
Will Hornsby ( Will.Hornsby@americanbar.org) is Staff Counsel in the ABA Division of Legal Services and is author of Marketing and Legal Ethics, 3rd Edition (ABA, 2000).