February 05, 2014 Articles

Ethical Conundrums in Blawgs

Don't run afoul of attorney-advertising rules.

By Anne-Marie Mitchell

When it comes to marketing, everyone has their own style. Although lawyers have traditionally used power lunches and golf outings with great success, an online presence is a necessary element of a marketing strategy for lawyers and law firms in today’s competitive climate. But don’t all rush at once to ditch your golf clubs! Lawyers should continuously monitor their online brand and carefully select the social-media platforms that best suit their marketing needs.

Launching a legal blog—more affectionately known as a “blawg”—has become an increasingly popular endeavor among lawyers. Although it can be a time-consuming project, an effective blog provides a relatively inexpensive opportunity to create some personalized branding. Both new and experienced lawyers can highlight their expertise or niche in a particular field simply by maintaining a blog. In turn, a successful blog can increase website traffic and ultimately assist lawyers in generating business. However, lawyers should be aware that this type of public posting can be considered attorney advertising by their state bar and may implicate a lawyer’s ethical duties.

Ethical Rules for a Legal Blog

Lawyers should judiciously consider their ethical duties before launching a new blog or posting their next entry. Legal blogs that simply discuss or analyze legal issues without offering any information about the author’s professional services or victories are unlikely to run into ethical problems. However, a legal blog used as a marketing tool is often subject to the same ethical considerations as any other type of attorney advertising. Blogging about particular cases you have won or clients you have represented can present a variety of ethical issues. For example, lawyers should (as always!) avoid revealing confidential information on a blog about their representation of a client without the client’s informed consent as required under Rule 1.6 of the Model Rules of Professional Conduct (or the state equivalent). Although there are certain exceptions to the informed-consent requirement of Model Rule 1.6, such as when the disclosure is impliedly authorized or necessary to prevent reasonably certain death, those circumstances are unlikely to apply in the context of a blog posting. Similarly, Model Rule 3.6 prohibits lawyers from making extrajudicial statements that they reasonably know or should know will be publicly disseminated and have a substantial likelihood of materially prejudicing an adjudicative proceeding. For example, a lawyer who identifies any inadmissible evidence or statements in a blog post would most likely violate Model Rule 3.6 because a media outlet could subsequently publish the nature of the inadmissible evidence, which would materially prejudice the potential jury pool and the proceeding. Further, managing or supervising lawyers in law firms have a duty to make reasonable efforts to ensure that all lawyers in the firm conform to the rules of professional conduct, which may include supervising a junior attorney’s blog.

Moreover, the ethical obligations regarding attorney advertising may apply to a blog as they do to other types of social-media use by attorneys. Under Model Rule 7.1, a lawyer may not make false or misleading communications about the lawyer or the lawyer’s service. Lawyers are specifically allowed to advertise services through electronic communications including public media under Model Rule 7.2; however, each communication must include the name and office address of at least one lawyer or law firm responsible for its content. Model Rule 7.3 provides in relevant part that every written or electronic communication soliciting professional employment from anyone known to be in need of legal services in a particular matter shall include the words “Advertising Material” at the beginning and ending of the communication. Lastly, Model Rule 7.4 allows lawyers to communicate that they practice in particular fields of law, but they may not imply any specialty or certification unless that certification has been accredited by the American Bar Association and the name of the certifying organization is clearly stated.

 

Regulating Legal Blogs as Attorney Advertising
In the age of social media, the realm of attorney advertising has expanded well beyond websites into blogs, Facebook, LinkedIn, and Twitter. As a result, an attorney’s use of such platforms may be subject to the ethical rules and state regulation of attorney advertising. While a clever lawyer may argue that his or her legal analysis or commentary on a blog entry is an exercise of First Amendment rights, an attorney’s postings may be regulated as commercial speech if the content is commercial in nature.

While there have been many articles written in recent years regarding the ethical issues for lawyers using social media, there have been very few actual disciplinary cases to test the application of ethical rules to these new platforms. In one of those cases, Hunter v. Virginia State Bar ex rel. Third District Committee, 744 S.E.2d 611, 621 (Va. 2013), the Virginia Supreme Court held that an attorney’s blog can be considered potentially misleading commercial speech that may be regulated by the Virginia State Bar. In Hunter, the Virginia Bar had previously brought a disciplinary action against Horace Hunter for violation of the Virginia Rules of Professional Conduct (which closely follow the ABA Model Rules of Professional Conduct). Mr. Hunter is a Virginia criminal-defense attorney who authored a blog that primarily discussed closed cases in which he obtained a favorable result for his client. The Virginia Bar had previously ruled in 2011 that Hunter’s blog violated Virginia Rule 7.1, Rule 7.2, and Rule 1.6. Hunter appealed this decision to the Virginia Supreme Court, which issued its ruling in 2013.

The Virginia Bar alleged that Hunter violated Rule 1.6 by discussing cases and his representation without obtaining the former clients’ informed consent. Mr. Hunter argued that the information he disclosed on his blog about former clients was equally available in the public record, and the Virginia Supreme Court agreed. The court held that Hunter has the same First Amendment rights as any other citizen and may, therefore, repeat truthful information about what occurred in a concluded public judicial proceeding involving a former client. Commentators have already pointed out that this aspect of the Virginia Supreme Court’s ruling may have far-reaching implications for client-confidentiality rules, because the court essentially has created a public-records or public-knowledge exception to client confidentiality by attorneys. David L. Hudson, Jr., “Commercial Ahead,” A.B.A. J., Nov. 2013, at 21.

Next, the Virginia Bar alleged that Hunter also violated Rule 7.2 for failing to post an advertisement disclaimer on his blog as required by the Virginia Rules of Professional Conduct. Hunter argued that his blog was primarily political speech about the criminal-justice system that is protected by the First Amendment. The Virginia Supreme Court rejected Hunter’s argument and reasoned that the blog was primarily commercial in nature because the blog was in part economically motivated, presented cumulative favorable results, specifically promoted his lawyering skills, was located on his law firm’s commercial website, and contained a “contact us” form for soliciting clients.

A key component of the court’s ruling was the finding that Hunter’s self-promoting blog posts were only potentially misleading, rather than being inherently misleading as the Virginia Bar argued. While the Constitution allows states to place an absolute ban on inherently misleading advertising, they may not ban potentially misleading advertising if the information may be presented in a way that is not deceptive. Thus, the Virginia Bar could require Hunter to post an advertising disclaimer on his blog posts if there is a substantial government interest in regulating the blog posts, the regulation directly advances the government interest, and the regulation is no more restrictive than necessary. The Virginia Supreme Court found that the Virginia Bar has a substantial interest in ensuring that the public is not misled to believe that they would be guaranteed favorable results if they hired Hunter. Further, the court found that requiring an advertising disclaimer on blog posts that discuss specific or cumulative results directly advanced the Virginia Bar’s governmental interest in protecting the public and was no more restrictive than necessary. Thus, the court found that Hunter’s blog posts were commercial speech and violated Rule 7.2 of the Virginia Rules of Professional Conduct.

 

The Future of Ethical Duties in Social Media
The ruling in Hunter could have a broader effect on the regulation of lawyers’ use of different types of social media. Although the Hunter opinion considered several factors that led to a determination that the blog was commercial speech—partial economic motivation, posting cumulative favorable results, promoting lawyering skills, location on a commercial website, and a “contact us” form—it is unclear how many of those factors or what other factors would be determinative of commercial speech. However, state bars of other jurisdictions, including California and Texas, have drawn a line between a legal blog that does strict legal analysis or offers links to legal articles (such as ScotusBlog) and a blog containing information regarding an attorney’s “availability for professional employment.” See State Bar of California Standing Comm. on Prof’l Responsibility & Conduct, Formal Op. 2012-186; see also State Bar of Texas Interpretive Comment 17 on Internet Advertising (2010) (not requiring filing of educational or informational blogs with Advertising Review Department). The difficulty arises when the social-media account or blog contains a mixture of the two kinds of speech. For example, an attorney who continually announces a favorable trial outcome on his personal Twitter account with a link to his firm’s website may actually be tweeting commercial speech and run afoul of that state’s ethical duties to post advertisement disclaimers. Certain bar associations, such as the Florida Bar Association, have issued guidance for lawyers using social-media advertising to avoid such ethical problems in the future. See Report of the Florida Bar Standing Committee on Advertising Guidelines for Networking Sites (rev. Apr. 16, 2013). For those thousands of lawyers who currently have linked or posted their legal blogs to their firm’s website, this type of advice could prove invaluable if other jurisdictions follow the lead of Virginia in regulating legal blogs.

 

Conclusion
As always, lawyers should carefully read the ethics rules and opinions of their relevant jurisdiction and evaluate the attorney-advertising rules that may apply to any legal blog. Several states, including Florida, California, and Texas, have issued guidance on attorney use of social-media advertising to help attorneys avoid disciplinary charges. The Huntercourt’s factors for determining “commercial speech” are also illustrative points that lawyers should consider when writing their blogs. If your blog contains links to your firm’s website (or is a component of that website), lists only your past victories or successful representations, and encourages the public to contact you, it is likely that a court or state bar would consider your blog to be commercial speech or advertising and subject to regulation under ethics rules. When in doubt about whether your blog contains commercial speech or advertising, follow the advertising rules of your jurisdiction. Using common sense and good judgment in posting information about clients and your firm will always help in both avoiding disciplinary problems and presenting yourself and your firm in a good light. With these concepts in mind, legal blogs can be used as an effective marketing tool without incurring ethical problems.

Keywords: litigation, ethics, professionalism, social media, ethics, advertising

Anne-Marie Mitchell is an associate at Stone Pigman Walther Wittman LLC in New Orleans, Louisiana.


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