D.C. Bar on mining social media for evidence and more
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California Bar on the ethics of blogging

Stacked3Here is this week's Daily Record column. My past Daily Record articles can be accessed here.


California Bar on the ethics of blogging

Blogs have been around for over a decade now and lawyers have been blogging from the very start. That’s why it’s so surprising that many state ethics committees have yet to weigh in on the ethical issues lawyers encounter when blogging.

For example, the issue of whether a lawyer blog constitutes attorney advertising had not been addressed in California until Formal Opinion 2016-196 was recently issued in final. At issue in that opinion was whether and under what circumstances blogging by an attorney constituted a “communication,” and was thus subject to attorney advertising regulations.

In this opinion, the Standing Committee on Professional Responsibility and Conduct of the State Bar of California opined that most law blogs did not constitute content subject to attorney advertising rules, with a few caveats.

First, the Committee concluded that, regardless of the nature of the content of the blog posts, all lawyer blogs that were integrated within a law firm’s professional website necessarily constituted lawyer advertising and were thus subject to attorney advertising regulations just as the firm’s website would be. It reasoned that “(a)s part of a larger communication (the professional website) which concerns the firm’s availability for professional employment, the blog will be subject to the same requirements and restrictions as the website.”

I find this conclusion to be somewhat surprising and to the best of my recollection, it’s the first time I’ve seen this distinction made. In my mind, it’s a bit of a jump to conclude that blog posts that are otherwise educational and not intended to overtly advertise a lawyer’s services are necessarily “tainted “ and thus constitute advertising simply by virtue of the blog being embedded on the law firm’s website. The Committee's rationale - that because the website itself related to the firm’s availability for professional employment, this intent was imputed to the blog regardless of the content of the blog - does not square with its conclusion, discussed below, regarding stand-alone blogs.

Specifically, the Committee concluded that a stand-alone lawyer blog focused “on law‐related issues or developments within his or her practice area (were) not a ‘communication’ subject to the rules regulating attorney advertising unless it invite(d) the reader to contact the
attorney regarding the reader’s personal legal case, or otherwise expresses the attorney’s availability for professional employment.” The Committee clarified that identifying the attorney as the author of a post on the blog, where the reference to the attorney’s name included a hyperlink to the attorney’s law firm website, did not evince an intent to show that the lawyer was available for professional employment. As such, attorney advertising regulations were not applicable.

I disagree with the premise that a blog devoted to educational topics that is embedded on a law firm’s website is somehow more promotional than a blog devoted to educational topics that includes a link to the lawyer’s website in the content of each blog post. In both cases, the lawyer is providing non-promotional content in the substance of the blog post, while providing the reader with context regarding the lawyer’s necessary expertise to write about the issues discussed on the blog.

Also perplexing is a relevant topic noticeably missing from this discussion: any reference to the “About” page that is often embedded in most stand-alone blogs. This page often includes detailed information about the author(s) who write for the blog, including descriptions of their professional background along with links to their professional websites. In other words, it offers information quite similar to that found on a law firm website, and would thus warrant inclusion in the analysis of the issues addressed in this opinion.

So, as is often the case when I read ethics opinions about lawyers using social media and blogging, I find myself in disagreement with the assumptions underlying the analysis relating to the technology at issue. There seems to be a fundamental lack of understanding regarding the use of the medium at issue here, blogging. I find that perplexing in 2017. When it comes to newer technologies, such as Artificial Intelligence, the unfamiliarity with the concepts is forgivable, but blogging has been around for more than a decade. It’s downright puzzling that these concepts continue to seem so foreign to the Committees authoring opinions such as this one. I keep convincing myself that this will change over time, but, quite frankly, I’m beginning to lose hope.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.