Nicole Black, The Daily Record Newswire
When I first started my law blog in 2005, blogging was just becoming mainstream. Very few lawyers blogged and it was unclear whether blogs devoted to discussing and analyzing legal issues constituted an “advertisement” under the New York Rules of Professional Conduct, thus requiring compliance with attorney advertising rules.
This issue was cleared up somewhat in 2007 when the rules were revised and the commentary which accompanied the new rules suggested that law blogs with primarily educational goals, as opposed to those focused on obtaining clients, were not considered legal advertising.
However, up until now, the New York State Bar Association’s Committee on Professional Ethics had never interpreted the relevant rules and weighed in on this issue. Fortunately, in June that changed when the committee handed down Opinion 96t, which provided clarification on this issue.
The specific question asked in this case was whether the inquiring attorney’s blog was an advertisement “and thus subject to the retention and preservation requirements of the attorney advertising rules” where the attorney was employed by a corporation promoting work-life balance and planned to blog about work-life balance issues on the corporation’s behalf under his name for a blog titled “The [Inquirer’s Name] Esq. Blog.”
The committee concluded that because his blog would not focus on legal matters and there was no indication that he intended to solicit legal clients through the blog, it would not be deemed to be an advertisement.
In reaching this very specific conclusion, the committee also addressed the broader issue relating to what types of legal blogs might require an attorney to comply with the applicable attorney advertising rules.
Importantly, the committee noted that pursuant to the Comments to Rule 1.7, not all communications made by a lawyer constitute an advertisement: “For example, marketing and branding items such as pencils or legal pads with a firm name do not constitute advertisements if their primary purpose is general awareness and branding, rather than the retention of the law firm for a particular matter. Cmt. [8]. Sponsorship of cultural or sporting events, with dissemination of information about the lawyer limited to specified narrow categories, is also not considered advertising. Cmt. [10]. Even when communications from lawyers contain information about the law, they are not necessarily advertising. ...”
Then, in a footnote, the committee elaborated upon this concept, explaining that Comment 7 to Rule 7.1 specifically states that communications by lawyers — including blog posts — where the primarily goals of the communications are educational, do not constitute advertising: “For example, ‘[t]opical newsletters … or blogs intended to educate recipients about new developments in the law are generally not considered advertising.’ Rule 7.1, Cmt. [7]; see also, e.g., N.Y. State 918 (2012) (educational legal video that does not encourage viewers to retain the law firm is not an advertisement because the primary purpose is not retention of the law firm); N.Y. State 899 (2011) (providing general answers to questions in a legal chat room, without more, does not constitute advertising).”
The bottom line is that the New York lawyer advertising rules are not triggered when lawyers blog about legal issues with the primary goal of providing educational content, rather than encouraging potential clients to retain the lawyer’s services. In other words, where a blog is written by an attorney, but the primary purpose of the blog is educational and is not retention of the attorney, it is not an advertisement. To the extent that was unclear before, it is no longer and blogging New York lawyers can rest easy tonight.
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Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book “Cloud Computing for Lawyers,” coauthors the ABA book “Social Media for Lawyers: the Next Frontier,” and co-authors “Criminal Law in New York,” a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycase.com.
