A recent ethics opinion by the State Bar of California clarifies the circumstances under which legal blogs may be subject to that state's professional responsibility and legal advertising rules. Other states have released, or are considering, updating their rules with respect to attorney advertising online, so all lawyers who use a website and/or blog for advertising should stay current on the developments in this area.
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Depending on which state you practice in, it may be relatively clear that your law firm’s website is considered attorney advertising under the applicable rules of professional responsibility, and is therefore subject to regulation by your state bar. What may not be as apparent is that your law firm’s blog may be treated in the same way.
To a certain extent, legal blogs have historically been regarded as a source of educational information and commentary regarding developments in the law as opposed to marketing information, even if they serve to enhance an attorney’s professional reputation. While this can still be true, recent developments in the legal ethics world suggest that any non-educational material you feature on your blog can make the difference between whether or not the content on your blog is regulated by your bar association.
In early 2015, the State Bar of California put out Proposed Opinion 12-0006 clarifying the circumstances under which legal blogs may be subject to that state’s professional responsibility and legal advertising rules. While of course this opinion will only be binding for California if adopted (public comments on the proposed opinion were closed March 23, 2015), the court’s reasoning in categorizing different kinds of blogs and blog content can be instructive to attorneys who are considering legal blogging in other states as well.
Discussing a handful of hypothetical blogs and types of blog content, the state bar committee concluded the following:
- Attorney blog content is subject to state legal ethics and advertising rules if it communicates the attorney’s availability to provide legal services, and/or invites readers to hire the attorney, either explicitly or through a description of the lawyer’s services, case results, or a combination of the two.
- By extension, a stand-alone attorney blog that consists of educational material and/or commentary regarding developments in the attorney’s practice areas is not necessarily subject to these attorney ethics and advertising rules, but will be if it contains any of the information described above relating to the lawyer’s services, successes, or availability for employment. Even language that simply invites readers to contact the attorney with any questions about legal developments discussed in a blog post can bring that material under the purview of the advertising rules. Further, if readers are not allowed to comment on content appearing on the blog, that factor will weigh in favor of regulating the content as advertising material.
- With regard to blogs that contain some posts that are purely informational, and other posts that contain material that would be considered advertising, the whole blog will be subject to advertising rules due to the continuous nature of consecutive posts on a blog.
- A legal blog that is part of an attorney’s website is subject to the same attorney advertising rules as the website.
- A stand-alone blog that belongs to an attorney but that pertains entirely to non-legal topics does not become subject to state bar ethics or legal advertising standards if it simply includes a link to the attorney’s professional website for the purpose of identification.
So what does this mean for your blog? As mentioned above, this proposed opinion would apply only in California, and each state has its own rules of professional responsibility. However, other jurisdictions have recently been establishing standards on this topic as well, and they reflect some of the same reasoning as the California decision.
For example, and as noted in the California bar’s opinion, in 2013 the Virginia Supreme Court analyzed an attorney blog that, while containing some commentary regarding law and policy issues, mostly featured posts describing the attorney’s successful record as a criminal defense lawyer. The court reasoned that the self-promotional nature of this material and absence of appropriate disclaimers could lead a prospective client to believe that the same positive results would be guaranteed in their case, making the blog subject to Virginia’s attorney advertising rules.
As noted in the California opinion, this reasoning closely tracks Comment 3 to the American Bar Association’s (ABA) Model Rule of Professional Conduct 7.1, which explains that descriptions of an attorney’s achievements, without accompanying information regarding the facts and circumstances of the particular cases they relate to, can potentially be misleading and therefore run afoul of the general prohibition on false statements by attorneys in advertising materials. Given that a large number of states have adopted some variation of the ABA’s Model Rules, this logic may be applicable in many jurisdictions, even those that do not have any formal state bar authority on point.
In sum, this is certainly an evolving legal issue, but state bar associations are beginning to provide more specific guidance regarding whether and to what extent attorney advertising rules apply to legal blogs. It is always important to check the rules in any jurisdiction you practice in to make sure you are up to date on the most current developments. However, in many states, it is likely that the safest course of action is to treat your blog as attorney advertising material, include all relevant disclaimers, and ensure that you are in compliance with any other applicable rules of professional responsibility.
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