Lawyers from around the blogosphere responded quickly:
Eric Turkewitz labeling his post Chubb Insurance trips over self in trying to regulate law blogs: And if I decide to rip into Chubb for trying to draw a line that doesn’t really exist, does that mean I am not discussing it in a neutral and unbiased way and therefore the blog is now outside their coverage? If I mock them for failing to have counsel review this new policy and I advise them to get it reviewed — for no attorneys in their right mind would ever try to draw such a line, so it stands to reason it wasn’t reviewed — is my posting now advisory instead of informational? If I strongly suggest it was foolish to do this, are my comments advisory or informational?
And how an “advisory blog” establishes an attorney-client relationship, by the way, is beyond me. To establish a relationship one needs to have one-to-one communications, not just an opinion shouted to the world. (I wonder if Chubb considers that comment of mine informational or advisory, regardless of whether it is right or wrong?)
In trying to define the legal blogosphere and place these ever-changing formats into neat categories, Chubb is creating a problem by trying to graft static definitions onto a dynamic beast.
If this is the place that Chubb wants to go, then law bloggers who have them as their insurer need to bring their business elsewhere.
The only thing Chubb seems to have done right here is place a bulls-eye on its back for ridicule.
Bob Ambrogi: After all the recent to-do over legal malpractice insurer Chubb’s refusal to cover blogging, Chubb has finally issued a big “Nevermind.” Problem is, its nevermind is about as clear as a double espresso. New Jersey Law Journal reporter Lisa Brennan first broke the story March 20, writing that a New Jersey law firm put its blogging plans on hold after Chubb told it that blogging was not a risk it would undertake. At the time, Brennan’s calls to Chubb for comment were not returned. Yesterday, as Kevin O’Keefe reported at his LexBlog Blog, Chubb issued a statement responding to “confusing media reports about the company’s willingness to insure blogs.” It went on to say, “Chubb does insure this new form of communication — and will continue to do so within select parameters.”
Those “select parameters” are as confusing as the original confusion. As Chubb’s statement explains it, the company “has found that law firm blogs fall into two general classes: informational and advisory.” The first type “presents information or offers a forum for discussing issues in a neutral, unbiased way. … In an advisory blog, however, a law firm offers advice.” The statement says that Chubb will evaluate each blog “on its own merits,” but suggests that the latter type of blog may pose an uninsurable level of risk……Blogs, by their very nature, are rarely, if ever, purely informational. By Chubb’s analysis, if they are not informational, they must be advisory, and if they are advisory, they are risky. Doesn’t that bring us full circle back to the original proposition? OK, maybe Chubb will insure some blogs, but most, by its own analysis, will be deemed to be risky business.
I appreciate the concern over chilling bloggers, but seasoned bloggers know the difference between information and advice. If Chubb ever tried to stretch the definitions to deny coverage, there would be a blogger backlash of epic proportions. Chubb is too smart for that; I would not worry.
Dennis Kennedy in an email to me: I must admit that I’ve never seen a lawyer or law firm blog that I would call an “advisory blog.” I understand their concern and their analysis of the issues and insurability of a blog that offered direct advice is probably correct, but it seems like a purely hypothetical situation.
Has anyone else seen a blog that you would consider “advisory”? It just doesn’t seem that lawyers use blogs in that manner.
I’m also guessing that a standard “this is not legal advice” disclaimer would carry a lot of weight in the determination.
Eric Goldman in an email to me: Is anyone today offering an “advisory blog” where they are actually trying to form and service client relationships through a public blog??? I wouldn’t insure those people either, but I wonder if these blogs are chimeral.
Allison Shields: Chubb’s definition of an ‘advisory blog’ would seem to be a blog which offers advice to specific individuals, rather than providing general guidelines or information. Neither the commenters to Kevin’s post nor those with whom I have been discussing this issue outside of the blogosphere have ever seen a blog that could be considered an ‘advisory’ blog. Indeed, it is difficult to imagine a lawyer that would be willing to take on that kind of risk for themselves (not to mention providing legal advice to unknown clients over the internet for free).
Notably, the Chubb press release fails to address the issue of disclaimers or whether the inclusion of a disclaimer on a blog would have an effect on Chubb’s determination of ‘insurability.’
David Rossmiller in comments to my post: “Advisory blogs?” What’s that, a Dear Abby type of thing? What lawyer in his or her right mind is going to give it away for free on the internet? What’s that lawyer’s motto: “All the risk, none of the profit”? I’d like to know how many of these are supposedly out there, I’ve not run into any. Saying they are not going to insure advisory blogs is like saying they are not going to insure snowmobiles in Mississippi.
Susan Cartier Liebel: I have never heard of an ‘advisory blog.’ What it seems to me is that Chubb is creating their own definition of the blog they fear versus the reality of what a blog is. Any practice-area based blog is informational and I have yet to see a blog which advises unknown clients. There are blogs which can have a forum component providing give and take with the author but I have yet to see an author give ‘advice’ that establishes an attorney client relationship. But my best guess is the all important language in their letter which gives them the opportunity to review each blog on a case-by-case basis to determine insurability…it also allows them to determine where it falls on their pendulum of risk, minimal to maximal, and as to whether or not the blog author is complying with the current Rules governing advertising within their state with the disputed disclaimers and the current cases pending against this requirement, such as in New York.
Rush Nigut in comments to my post: Chubb is trying to save face. The company realizes it made a mistake with its blanket denial and the press release is a way to say, “We really didn’t mean we wouldn’t cover law firms that have blogs . . . you must have misunderstood us.”
Dreams of a Solo (anonymous) 4/7/07: It is not a good idea for any solo to design his or her blog as an “advisory blog.” You just cannot take on that added risk without any reward. That of course assumes that we can properly define an “advisory blog” to start with. I am picturing a Dear Abby type column where a legal question is asked and the lawyer provides an answer. I would be worried about initiating an attorney-client relationship and/or providing advice that an individual could rely upon to his detriment. Neither of which is an acceptable situation for an attorney in the blogosphere.
Chubb Insurance refuses to cover law firm with blogs
Chubb Insurance responds to denial of coverage for blogs
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