Nicole Black, The Daily Record Newswire
When blogging started to become commonplace a decade ago, it wasn’t something many lawyers concerned themselves with. Eventually, lawyers began to blog and many began to wonder whether blogs constituted lawyer advertising and thus required disclaimers.
Over time, a number of jurisdictions have addressed this issue, with California weighing in on it just last month in proposed Formal Opinion Interim No.12-0006. In this opinion, the California Standing Committee on Professional Responsibility and Conduct considered the circumstances under which a California attorney with a blog is subject to the provisions of the Professional Rules of Conduct relating to attorney advertising.
The committee considered four different hypothetical blogs: 1) a standalone blog written by an attorney where the majority of posts heralded his courtroom victories and comments to the posts are not permitted, 2) a blog embedded in a law firm’s website that includes substantive law posts written by various members of the firm and invites readers to contact the post author for more information, 3) a stand-alone blog where the attorney writes about substantive law issues and the blog includes a link to the law firm with which the attorney is affiliated, but readers are never invited to contact the firm, and 4) a stand-alone blog where an attorney writes about jazz and the blog includes a link to the law firm with which the lawyer is affiliated.
In assessing whether the various blogs constituted attorney advertising, the committee noted that their analysis revolved around the answer to this inquiry:
“Whether a blog post is a “communication” subject to regulation under rule 1-400 therefore will depend on whether it meets the second part of the test: Is the post “concerning the availability for professional employment” of the member or her firm?”
The committee emphasized that when determining whether a blog post constitutes a “communication,” it is important to consider the nature and features of the blog. So, a blog that is embedded in a law firm’s website, by its very nature, includes communications that suggest availability for professional employment.
In comparison, stand-alone blogs must be examined on a case-by-case basis to determine whether rule 1-400 applies. The committee noted that an explicit invitation on the blog or in blog posts asking the reader to contact or hire the attorney constitutes a communication. In comparison, the Committee explained that a blog that invites readers to comment on the content of a post is evidence that the blog posts are non-commercial commentary rather than a commercial pursuit.
The committee then applied that analysis to the blogs at issue and concluded that the first two blogs (the stand-alone blog showcasing courtroom victories and the blog embedded in the law firm’s website) were “communications” whereas the other two (the substantive stand-alone blog and the jazz blog) were not:
“Attorney blogs are subject to the requirements and restrictions of rule 1-400 and the related provisions of the Business and Professions Code 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 a description of the attorney’s legal practices and successes in such a manner that the attorney’s availability for professional employment is evident. A blog that is a part of an attorney’s or law firm’s professional website is subject to the rules regulating attorney advertising to the same extent as the website of which it is a part. A non-legal blog by an attorney is not necessarily subject to the rules or statutes regulating attorney advertising because it includes a hyperlink to the attorney’s professional Web page.”
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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.
