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What is the ABA Commission on Ethics 20/20 considering re law blogs?

As I shared yesterday, the ABA Commission on Ethics 20/20 has taken no action to date limiting a lawyer’s use of blogs, Twitter, Facebook, and other online client development tools. If the Commission does take any action, and it’s far from clear that it will, it’s going to be a few years before we’ll see any amendments to the ABA’s Model Rules of Professional Conduct.

The Commission outlined the matters it’s considering in its Paper of September 20 (pdf). What is the ABA Commission on Ethics 20/20 considering re law blogs? Not much.

From the Paper:

  1. Under what circumstances should the Model Rules of Professional Conduct govern a lawyer’s participation in blogs, given that such activities often have both an advertising and non-advertising function?
  2. Should the Commission draft a policy statement for the House of Delegates to consider or a white paper that sets out certain guidelines regarding lawyers’ use of blogging? Alternatively, or in addition, should the Commission propose amendments to Model Rules 1.18 (duties of confidentiality and conflict of interest re prospective clients) or 7.2 (advertising of legal services) or the Comments to those Model Rules in order to explain when these activities might trigger ethical obligations under the Model Rules? If so, what amendments should the Commission offer?
  3. If lawyers leave comments on blogs, are those comments subject to the Model Rules of Professional Conduct? Should the Commission offer a policy statement or white paper that sets out certain guidelines regarding lawyers’ use of such activity? Alternatively, or in addition, should the Commission propose amendments to Model Rules 1.18 or 7.2 or the Comments to those Model Rules in order to explain when such activity might trigger ethical obligations under the Model Rules? If so, what amendments should the Commission offer?

That’s it. Not much, if anything, to be worried about.

  • Should blogs be governed by the Model Rules of Professional Conduct? I am not aware of any lawyers on The LexBlog Network of over 3,500 lawyer authors who don’t already believe legal ethics rules apply to their blogs. The Commission’s telling lawyers that the Model Rules of Professional Conduct apply to blogs is telling us the obvious.
  • The Commission may draft some guidelines or Comments to the Model Rules in order to explain when blogging might trigger ethical obligations under the Model Rules. Okay. I don’t know any lawyers who don’t already believe blogging triggers ethical obligations.
  • The Commission may draft some guidelines or Comments to the Model Rules in order to explain when a lawyers leaving comments on a blog might trigger ethical obligations under the Model Rules. Okay. I don’t know any lawyers who don’t already believe leaving comments on blogs triggers ethical obligations.

There’s been a bit of hysteria on the blogosphere that the ABA may be outlawing blogs and other online client development tools. There’s nothing to it.

Law blogs are here to stay and the ABA and its Commission on Ethics 20/20 is not considering action to limit or curtail blogging by lawyers.

  • http://www.myshingle.com Carolyn Elefant

    Actually, Kevin, it is not “obvious” that legal ethics rules apply to blogs. I never understood why lawyers so readily ceded that argument.
    Do legal ethics rules apply to law review articles? To newspaper columns? Many blogs are speech, pure and simple, with minimal or incidental promotional value (if any). These blogs do not deserve to be tossed in the same pile as those that brazenly promote a practice or even solicit clients directly. Can bars distinguish between the two? Sure. It’s done already; as I said, no one would ever require a big scarlet “D” (disclaimer) on a law review article or a piece in an ABA publication, yet these can have promotional value (I know, since my first law review article, Ocean Energy in the 1990s lead me to my first client when I started a firm). Moreover, courts have articulated the type of test that might be used to distinguish blogs that are speech versus blogs that are not – (Stern v. Bluestone, 2nd Circuit and Holzman v. Turza ((N.D. Ill. August 3, 2010)
    One of my law blogs is read by congressional staff and regulators.
    Am I making a big deal out of nothing by taking umbrage at having to brand my blog with a disclaimer? I don’t think so – and here’s why. My renewables law blog is read by regulators and congressional staff. An ebook that I include on another blog is circulated by landowners nationally and recently, a federal agency asked about using it in its outreach materials. You can bet that if I were required to identify my materials as advertising that they would never carry that same level of credibility. I don’t think that I should have to sacrifice my credibility because of the lawyers who use blogging only as do-it-yourself SEO or a marketing tool.

  • http://www.lawyer-coach.com Debra Bruce

    If it is possible here, I agree with both Kevin and Carolyn. I agree with Kevin that blogs are already subject to ethical rules. Everything we do as a lawyer is subject to ethical rules. By way of example, we have to maintain client confidentiality whether we are talking to opposing counsel, engaging in casual conversation at a cocktail party, or blogging.
    Although ethical rules may apply, that doesn’t mean that a blog should be considered advertisement. In the Texas advertsing rules, Rule 7.07 acknowledges an intention to protect the 1st amendment rights of lawyers, while protecting the public from misleading advertising. The Director of Advertising Review in Texas says that blogs that are editorial, informative or educational are not subject to filing requirements as an advertisement. They are still subject to prohibitions against false, misleading or deceptive communications, under other sections of the ethical rules, which is entirely appropriate in my book.
    Is it possible that the ABA would actually clarify that blogs are not advertisements under the circumstances desribed above, and DON’T require filing, disclaimers, etc. That might be a blessing.

  • http://www.benglasslaw.com Ben Glass

    The problem is not so much whether a blog, tweet, facebook entry, etc is subject to regulation. If a lawyer makes a false or misleading statement about the quality of his legal services, it doesn’t matter what media is used to make that statement.
    The real problem is deciding what is a misleading statement? Generally, bar rules make 2 assumptions in this regard: (1) all consumers are morons and (2) all lawyers are presumed to be trying to mislead.
    This leads to the REAL problem with lawyer marketing/advertising for solo and small firm lawyers. Its those states that require that you submit everything to THEM first, most often with you paying a fee for THEM to bless it. (So, for example, in some states the bar wants to see your YouTube video before you post it if it contains your name and phone number – thus ‘advertising’ – and they want you to pay them $75 a pop. This comes because of the two presumptions noted above.)
    I think that the fight solo and small firm lawyers could most efficiently take on is the requirement of pre-screening. It seems this is most violative of the First Amendment.