The following article originally appeared in ABA GP Solo Magazine, December 2007
Are lawyers’ blogs online practice guides or websites? The answer to this question is neither, really. However, the degree to which you equate blogs with one of these forms of communication can significantly impact the ethical implications of using a blog.
What Is a Blog?
A blog is basically an electronic medium for posting information and inviting electronic responses from readers. It differs from e-mail in that it usually consists of a web page that permits interactive communications while simultaneously archiving a record of those communications that may be accessed by the blog’s author and its users. A blog differs from a website in that it is typically cheaper and simpler in form, and it can be updated with new postings on a frequent basis and with minimal effort. Additionally, many law firm websites are managed off-site by vendors. Legal blogs, on the other hand, are typically managed by one or more lawyers who regularly post content on the blog.
Blogs, or “blawgs” as some lawyers like to call them, have become increasingly popular in the legal community. Blogs are used for a variety of purposes, including advertising, providing informational resources, creating forums for public or political debate, and communicating with potential or existing clients.
An especially prevalent phenomena is the use of blogs to provide information regarding highly specialized areas of legal practice. The Internet is full of blogs purporting to specialize in topics such as intellectual property, construction law, energy law, health care law, and so on (e.g., www.blawg.com). There are even blogs that deal with legal ethics (e.g., http://kentuckylegalethics.com). Legal blogs often contain discussions by the blog’s author, recent rulings, decisions, and other matters of interest related to the topical focus of the blog.
Blogs have the inherent potential to serve as inexpensive and effective marketing tools. Information about the author, his or her firm or practice, and the association of the author with a particular area of expertise can all function as a means of relating the author’s interest, experience, and availability in a given area of the law to users of the blog. Many legal blogs are accessible to anyone who surfs the Internet, including potential clients. They often can be brought up in Google searches simply through the use of a key term.
Given their ease of use and interactive nature, blogs can serve as a virtual library of current developments on legal issues, case law, research, and scholarly debate. Many blogs have search capabilities and detailed subject indexes. The more focused, sophisticated, and organized the blog, the more it starts to look like an online practice guide, tutorial, or legal treatise.
The Ethical Implications
The ethical landscape surrounding blogs is beginning to take shape but is still largely uncharted. Ethical concerns include the applicability of advertising restrictions, protection of client confidences, conflicts of interest with users of the blog, and the unauthorized or multi-jurisdictional practice of law by bloggers who communicate with individuals in other jurisdictions. This is by no means an exhaustive list.
Some argue that a blog is often the functional equivalent of a professional online handbook, where the author routinely updates the site with postings, legal analysis, and information regarding a particular area of practice. The author is engaging in essentially the same type of communication he or she would undertake if the information were communicated in a more traditional format, such as a book or treatise, or in a CLE presentation. Accordingly, the lawyer’s ethical obligations should be no more onerous than those applicable to communications made in these more traditional forums. But see Formal Opinion No. 1998-2 of the Association of the Bar of the City of New York, which suggests that “[t]he dynamics of written legal discussions on the Internet are different from those of oral public discussions, in part because the written word is generally given more weight, and may benefit from longer retention and study, than the oral word.”
Others argue that the medium is not the issue. The content is what is critical. And, to the extent a blog contains information that would be regulated on a website, the same ethical obligations should apply. Recently, the Kentucky Bar Association Attorneys’ Advertising Commission took the position that legal blogs are no different than law firm websites and should be subject to restrictions on lawyer advertising. In Kentucky, those restrictions require submission of the advertisement for commission approval and payment of a $50 fee for each ad. Given the frequency with which posts can be made on a blog, a $50 fee and advance approval of each posting could quickly become prohibitive. (After public outcry, the commission appears to have reached a compromise policy by which bloggers are not required to pay $50 every time they post a new entry, but if the blog contains a link to biographical information about the lawyer, that page has to be submitted to the state with a one-time fee. Additionally, regulators can demand to review a blog if they find that it is not a legitimate exercise in journalism.)
Traps for the Unwary
Lawyers could certainly benefit from guidance regarding how this emerging form of communication will be viewed by regulatory authorities. Until then, there are a variety of ways in which the unwary lawyer could become involved in an unintended ethical imbroglio. Consider, for example, the following scenario.
Lawyer A starts her own blog focused on legal issues pertaining to DUI litigation. Her principal motivation in maintaining the blog is to provide a resource on current developments to other practitioners. The blog provides some general background about Lawyer A, but it is limited to her name and geographic location. The blog, however, is open and accessible to any Internet user, including potential clients. Two months later, with the blog in full swing, Lawyer A decides to respond to a reader’s posting regarding certain search and seizure issues the reader has encountered in one of his cases. A year earlier Lawyer A had a case involving the same issue, in which she prevailed. The results of the case received public attention in the local newspaper. In responding to the reader’s inquiry, Lawyer A posts a copy of the article that discusses the issue and, incidentally, the lawyer’s prominence and success in several other cases involving DUIs.
Does Lawyer A’s posting of the article subject her to potential discipline? It is not inconceivable. In a recent decision, Florida Bar v. Gold (2006) 937 So.2d 652, the Florida Supreme Court held that although the initial publication of an independently authored news article about an attorney did not violate bar rules regarding lawyer advertising, the attorney’s “republication” of the article in a solicitation could constitute ethical misconduct. Among other things, the court found that the republished article included statements about the lawyer’s past successes or results obtained, which could violate Rule 4-7.2(b) of the Rules Regulating the Florida Bar. That provision defines statements referring to past successes or results obtained, statements likely to create an unjustified expectation about the results the lawyer can achieve, and statements describing or characterizing the quality of the lawyer’s services as inherently false, misleading, deceptive, or unfair. By republishing the article as part of another communication with a potential client, the court held that the lawyer had “adopted the article’s contents and made them into advertising copy. In this way, the articles’ contents became subject to the strictures of the Bar’s advertising rules.”
Similar arguments might be made where a blog provides “links” to other sites that contain advertising, or where a lawyer reader submits postings boasting of his or her success on various matters. Earlier this year, the Board of Governors of the Florida Bar approved for filing with the state supreme court amendments to Rule 4-7.6 regarding “Computer-Accessed Communications.” Interestingly, the amendments provide that “websites” may contain factually verifiable statements concerning past results obtained by the lawyer or law firm, if, either alone or in the context in which they appear, such statements are not otherwise misleading and the statements are accompanied by a disclaimer stating, “Not all results are provided, the results are not necessarily representative of results obtained by the lawyer, and a prospective client’s individual facts and circumstances may differ from the matter in which the results are provided.” Additionally, the commentary to the rule notes that “[t]his rule is not triggered merely because someone other than the lawyer gratuitously links to, or comments on, a lawyer’s Internet website.”
One of the advantages of blogs is the open and flexible format in which they communicate and exchange information. However, this flexibility, and the lack of formal control over content that is posted by third parties, gives rise to a heightened risk that unintended ethical obligations could be triggered by the actions of those parties.
Where does this leave the would-be legal blogger who wants to catch the latest wave in lawyer communication, perhaps establish himself or herself in an area of expertise, or reach a broader audience from the convenience of his or her desktop?
Taking a careful, thoughtful, and balanced approach to the use of blogs is probably the best answer. In that regard, there are a number of practical steps that legal bloggers can take to help minimize the potential for ethical dilemmas.
First, consider in advance the intended use of the blog. Is it primarily a marketing tool, or do you view it as an informational resource or perhaps simply a personal space to develop your own thoughts and ideas on a wide range of subjects? Having a clear goal will help inform the nature of the content that is likely to be posted (by yourself and others), the ethical restrictions that could potentially apply, and the types of preventative measures that you might want to consider implementing to facilitate the intended use of the blog.
Regardless of whether you view the blog as a marketing tool, you should familiarize yourself with your jurisdiction’s rules on lawyer advertising and make sure your blog complies with any applicable restrictions. Given the rather expansive definition of “advertising” in many jurisdictions, it is not safe to assume that the purpose or intent behind the blog will be decisive on the issue of whether it is subject to regulation. Expansive definitions can encompass content that may not be intuitive, as readily demonstrated by the Florida decision discussed above.
If you do not intend to use the blog as an advertisement, try to minimize the amount of information contained therein that could be construed as such. You should consider having a disclaimer stating that the blog is not an advertisement and expressly prohibit users from posting material or content that could be construed as advertising. You also may wish to consider minimizing or even eliminating links to other blogs or websites, especially those that contain advertising.
Once you have thought about the purpose and format of the blog, you should post content and create guidelines for readers in a manner that is consistent with your intended purpose. For instance, if you intend the blog to be a general resource for legal research, case law developments, and analysis, postings should discuss issues in a generic or hypothetical manner that does not identify a particular client or disclose information that can be readily associated with a particular client. This focus will minimize the possibility of any inadvertent disclosure of privileged or confidential information and also will reduce the risk of potential conflict issues between the author and readers of the blog. It is surprisingly easy for participants, especially in the informal forum of a blog or a listserve, to inadvertently reveal their thinking or facts about an active matter through discourse on broader legal issues. If your blog is going to be open to all users or used as a source of advertising to potential clients, you may want to consider express restrictions regarding the type of information posted by users. For instance, you may wish to advise users that they should not make detailed fact-specific inquiries regarding active or potential matters, as such communications are not confidential and are readily available to the general public, but that they should contact you directly instead.
Provide content in a manner that can be fairly characterized as generic, informational, and resource oriented, as opposed to being “legal advice” on a specific matter. This can help minimize the prospect of a reader claiming that exchanges through the blog have somehow created an implied attorney-client relationship. This approach may also preempt allegations that a lawyer who blogs with readers in other jurisdictions is engaging in the unauthorized or multi-jurisdictional practice of law (see ABA Model Rule 5.5; see also Report of the Pennsylvania Bar Association TASK FORCE ON LAWYER ADVERTISING, May 2007, pp. 59-60). In that regard, you may want to consider identifying the office locations and jurisdictions in which you are licensed (see ABA Model Rule 5.5(b)(2); see also ABA Model Rules 7.1, 7.5(b)). You should include a disclaimer on the blog that in plain terms provides that by responding to content posted on the blog you are not entering into an attorney-client relationship with any reader—and further expressly provides that any information submitted to, or posted on, the blog is not and will not be kept confidential (see State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal Opinion No. 2005-168).
Given the analogy that can be draw between websites and blogs, it is possible that many of the restrictions placed on law firm websites could be deemed applicable to legal blogs. Consider implementing the same safeguards recommended for law firm websites on your blog, as well.
Finally, if you are going to have a blog, make sure that the lawyers or members of your firm who are going to maintain the blog understand the concepts and issues discussed above and utilize the blog in a manner that is consistent with its intended purpose and scope. You might also (for your own peace of mind) obtain your insurers’ perspective on blogs and find out what experiences if any they have had with claims related to the use of such a medium.
Blogs are an increasingly popular form of communication. They have the potential to be invaluable marketing tools, vast informational resources, and important forums for public debate. That said, given the as yet unaddressed ethical implications associated with the use of blogs and recent developments in obligations regarding the use of law firm websites, legal bloggers should proceed with care and take practical steps to minimize their ethical risks while the law and ethical consensus in this area continue to develop.