A law firm blog can be a great marketing tool and a nice break from all that stuffy legal writing that takes up your day, but it can also come with some serious risks for your practice. Several ethical rules can easily be violated if you don't take the proper care when producing blogs for your firm.
Read on to learn more about starting a law firm blog and the ethical roadblocks you'll need to avoid.
Duty to be Honest and Avoid Deception
Attorneys have an ethical code to uphold which also applies in cyberspace. In the current copy and paste era, it's possible to easily copy someone else's work into your blog. Even though it's a less formal method of writing, blogging still requires attributions. In starting a law firm blog, it's important to know the rules and requirements so you don't accidentally engage in:
Any one of the above can be seen as a violation of Model Rule 8.4(c), which prohibits attorneys from engaging in "dishonesty, fraud, deceit or misrepresentation." A case in point is the famous attorney plagiarism case of In Re Lamberis, where an attorney was disciplined by the University and by the Bar Association for plagiarizing material for his Master of Laws thesis. In preparing his thesis, the attorney copied nearly half of his 93 page thesis, verbatim, from other published sources.
Duty of Confidentiality
Attorneys are required to maintain the privacy of their clients and bar associations usually take a broad view of confidentiality when determining whether this duty has been breached.
A case in point is the matter of In Re Disciplinary Proceedings Against Peshek, where an attorney was suspended for blogging about her clients even though her blogs didn't mention them by name in an effort to protect their identities. The court believed that, based on what she had written in her blog, there was nonetheless a danger of inadvertently disclosing confidential information and it suspended her.
Several states have issued ethical opinions about disclosing client information, including the client's name. For instance, New York has issued Ethics Opinion 1088, which states that a lawyer may include client names in advertising, but must have prior written consent. The moral of the story: don't blog about your clients, unless the information is publicly available and you have your client's permission.
Disclosing confidential client information can also come up in situations when an attorney responds to a negative online review by a client or former client. The San Francisco Bar Association issued Ethics Opinion 2014-1 about an attorney's response to a negative online review on a public forum that rates attorneys. The SF Bar Association stated that it's generally okay to respond to a review by a former client, but an attorney is still prohibited from disclosing any confidential information when doing so.
Prohibition Against Trial Publicity
Attorneys are charged with maintaining the impartiality and decorum of the tribunal by not seeking to improperly influence a judge or juror, or to communicate with such a person during the proceeding unless authorized to do so. (Model Rule 3.6).
In one egregious case, Attorney Frank Russell Wilson violated that prohibition and was suspended for 18 months by the California Bar Association (06-O-13019) for posting blog entries about a federal criminal case while he was a juror on that case. Wilson's conduct resulted in the judgment of the criminal matter being vacated and remanded back to the trial court. This case had the added complication of juror misconduct, but it highlights the risks of posting blogs about an on-going trial.
Even when you're not in any ongoing litigation, saying derogatory things about a judge in a blog can also be grounds for attorney discipline as one Florida attorney found out in the matter of Florida Bar v. Conway. In that case, the attorney posted derogatory comments about a female judge calling her an "Evil Unfair Witch" and questioning her mental fitness and suitability for the job. The court held that the statements were either false or were posted with a reckless disregard for the truth. The Florida Bar publicly reprimanded the attorney and fined him, a decision that was affirmed by the Florida Supreme Court.
Duty to Be Truthful
As Mark Twain once said, "Never let truth get in the way of a good story." And while embellishments make for good story telling and possibly a good blog post, they're to be avoided by attorneys. Under Model Rule 4.1, a lawyer is prohibited from knowingly making a false statement of material fact to a third person.
Many lawyers have been disciplined for making false and misleading statements. In the matter of Disciplinary Counsel v Protor, for example, an attorney was suspended for six months for alleging, without any reasonable basis, that a judge harbored a bias against him, had engaged in ex parte communications with opposing counsel, and engaged in a cover up to hide his conduct.
Unauthorized Practice of Law
One rather important question to ask before starting a law firm blog is whether it could be found to constitute the unauthorized practice of law in a state where you don't hold a bar license. The answer is yes, especially if you're blogging about laws in such states or specifically appealing to users in those states. However, states vary wildly in what "practicing law" actually means.
In Minnesota conducting settlement negotiations by email resulted in a charge of the unauthorized practice of law for one Colorado attorney. The Colorado attorney had been contacted by his Minnesota in-laws to help them with a collection matter. The Colorado attorney engaged in settlement discussions via email and never set foot in Minnesota, yet the Minnesota Bar Association sanctioned him and, to add insult to injury, so did the Colorado Bar Association.
Even just listing yourself as being admitted in a state on your LinkedIn site can be the unauthorized practice of law. In the matter of Office of Disciplinary Counsel v. Magee, the Supreme Court of Pennsylvania ruled that Magee had engaged in the unauthorized practice of law in Pennsylvania. Magee was admitted only in Colorado, but his LinkedIn profile represented that he was licensed to practice in Colorado, California and Pennsylvania. In addition to being disciplined in Pennsylvania, he was also disciplined in Colorado.
The bottom line: before weighing in on another state's laws with your blog, it's wise to check that state's ethical rules on what constitutes the practice of law so that you know where that line is and, more importantly, how to avoid crossing it. Also, as with anything these days, don't forget your disclaimers.
Advertising of Lawyer's Services
Let's face it, your law firm blog is advertising and is subject to your state's ethical rules for attorney advertising.
The Model Rules 7.1 and 7.2 contain the requirements for attorney advertising and require truthfulness and the display of your contact information. In addition to these rules, many states require disclaimers on advertisements. It sounds simple, but sometimes attorneys are not aware that blogs can constitute commercial speech and be subject to such requirements.
A case in point is Hunter v. Virginia State Bar. In that case, the lawyer in question started a blog to create a community presence for his firm and to educate the public about criminal law. There was no advertisement on the blog, and the lawyer did not believe it was commercial speech. However, the court found otherwise saying that because the only cases discussed were ones that the lawyer won and it was on the law firm's website with a contact form, it constituted commercial speech. Therefore, an advertising disclaimer that complied with the Virginia State Bar Rules was necessary.
One major concern about starting a law firm blog is the possibility of creating an attorney-client relationship. Such a relationship can be formed unintentionally if the attorney provides legal advice in a confidential setting.
In ethical opinion 2003-164, the California Bar Association discussed the creation of an attorney-client relationship in the context of a radio talk show where a caller would call-in and give specific information and an attorney would provide a generalized answer. The California Bar found that no attorney-client relationship was formed in in this context because a reasonable person wouldn't expect a confidential relationship when other callers could hear the entire conversation. Still, the California Bar cautioned that an attorney-client relationship is formed from the standpoint of the reasonable expectations of the person dealing with the attorney. So, questions answered on a blog post, a private message, or an internet chat could form an attorney-client relationship.
In ethical opinion 1842, the Virginia Bar Association stated that an attorney-client relationship could be formed from a website which invited prospective clients to fill out an on-line form outlining factual details of their case. The opinion goes on to state that to avoid an inference of a client relationship a disclosure or disclaimer should be included on the website informing prospective clients that the information provided would not be confidential.
A Law Firm Blog is the Start of a Marketing Strategy: Get it Right with FindLaw's Help
While there are many new ways that attorneys are communicating with the public, the ethical rules are not always keeping pace. Whether your firm is hosting a blog, or uses Facebook, Twitter, or Chat to provide legal news, information, and even advice, you would be well advised to consider that all of it can constitute commercial speech. FindLaw can help your firm plan its online marketing strategy that will help you steer clear of ethical hurdles with its Legal Marketing Solutions.