Do you or your firm have a blog? Are you thinking about starting one? If so, you’ll need to make sure you’re adhering to your jurisdiction’s ethical rules.
Most jurisdictions have not directly addressed the ethical parameters of lawyer blogging, but at least one has.
In 2016, California issued a formal ethics opinion discussing situations in which an attorney’s blog may be considered a “communication” under advertising ethics rules.
In essence, if a blog post advertises the attorney’s availability for employment, it will likely be subject to lawyer advertising rules. But a post which provides or offers only information or informational materials is not.
Here are the guidelines provided by the California opinion:
- Blogging by an attorney may be a communication subject to lawyer advertising rules “if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both.”
- A blog that is an integrated part of an attorney’s or law firm’s professional website is a communication subject to attorney advertising rules to the same extent as the website of which it is a part.
- A stand-alone blog by an attorney, even if discussing legal topics within or outside the authoring attorney’s area of practice, is not a communication subject to lawyer advertising rules unless the blog directly or implicitly expresses the lawyer’s availability for professional employment.
- A stand-alone blog by an attorney on a non-legal topic is not a communication subject to attorney advertising rules, “and will not become subject thereto simply because the blog contains a link to the attorney or law firm’s professional website. However, extensive and/or detailed professional identification information announcing the attorney’s availability for professional employment will itself be a communication” under the rules.
Some Rulings on Lawyer Blogging From Across the Country
In Illinois case, an attorney, over the span of over a year, published blog posts containing confidential information about her clients and derogatory comments about judges. Information within the blog posts was sufficient to identify those clients and judges using public sources.
“Counsel advised the panel that Attorney Peshek began the blog about her thoughts and experiences to help her deal with her stressful situation. At no time did she discern any risk of disclosing client confidences, because she believed she adequately concealed her clients’ identities to avoid inappropriate disclosure. In part, based on violation of Rule 1.6 (duty of confidentiality), the attorney was suspended from the practice of law in both Illinois and Wisconsin.
In a majority opinion, the Virginia Supreme Court upheld a lawyer’s public admonishment imposed in connection with his blog. There, the criminal defense lawyer’s blog overwhelmingly discussed cases in which the lawyer obtained favorable results for his clients. He only blogged about his cases that he won. Nowhere in the posts or on the website were any disclaimers stating that case results depend on unique factors and could not be guaranteed. The Bar asserted that the lack of disclaimers made the blog posts inherently misleading.
The Court held that the lawyer’s blog posts were potentially misleading commercial speech that the State Bar could regulate. The Court also held that one disclaimer on the blog site was insufficient.
In Florida, an attorney published a number of remarks about a judge on JAABlog, an unmoderated social media site where people could blog about local Broward County judges. Among other things, the attorney called the judge an “evil, unfair witch” and “seemingly mentally ill.” The Florida Bar opened an investigation and the attorney claimed his comments were protected by the First Amendment.