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Washington Post creates needless scare about lawyer blogs being outlawed by state bars

October 10, 2011

If I had a buck for every article or comment I read about state bar associations limiting or outlawing the use of lawyer bogs, I’d be a rich man.

The latest scare comes from the Washington Posts’s Catherine Ho (@WapoCat) who warns that Virginia lawyers who blog about their cases as national and local criminal justice issues, beware: the state bar may come after you for inappropriate advertising. The article went so far to say the case could set precedent fo other states’s limiting lawyer blogs.

Bar authorities contend the blog [by Attorney Horrace Hunter] constitutes advertisement and should include a disclaimer saying it’s an ad. Hunter argues the blog is news and commentary, and the bar’s attempt to get him to tack on a disclaimer is a violation of his First Amendment rights.

The Bar says one purpose of a website is to market the firm and attract business so any blog discussion is an ad. Perhaps, but that would apply equally to sitting on civic boards, writing articles, or participating in seminars, all such activities that are conducted by lawyers to attract business. It’s what we do as contributing lawyers and citizens.

At some point, of course, limits on free speech come into play when something is deemed commercial speech, including lawyer advertising. Prescribed activity under lawyer advertising, even blogs, if classified advertising, include:

  • Lawyers cannot say anything false or misleading.
  • Lawyers cannot say they are a specialists unless so certified in certain states.
  • Lawyers can not use testimonials in some states with the implication that they could obtain similar results for you.
  • In same states a small disclaimer that the website is an advertisement must be placed at the bottom of the screen.

Let’s be a little practical here – even if it means no sensational stories for publications like the Washington Post. There there is no record of disciplinary action against Virginia attorneys regarding blogging dating back to 1999. We have 7,000 lawyers blogging on the LexBlog Network and none have been sanctioned anyway. Not a big risk here with lawyers who blog.

In fact, if the Washington Post wanted to write a true story about the impact of lawyer blogs, why not write a story on the positive impact lawyer blogs are having? Law blogs are making the law more accessible to consumers and business people. People can find a good, caring, and passionate lawyer they can trust via a lawyer who blogs. Blogging lawyers are marketing in ways they can take pride in and improve the image of our profession. Lawyers and industry experts are networking in ways to advance our law for the good of Americans.

And on the practical side for lawyers, God forbid we lawyers have to accept something like blogging as being lawyer advertising. I don’t agree with the approach, but all it would mean is the label of Attorney Advertisement in the footer of a blog screen and avoiding the above activity prescribed by attorney advertising.

Placing a small text reading “Attorney Advertising” on the footer of the web screen is not a big deal. We do that on hundreds of LexBlog Network Blogs. Not at the bottom of each post, but at the bottom of the screen, near where the copyright and ownership are disclaimed. Not a big deal at all.

And if you’re a betting person on where this case is going, look at what the experts are saying, as reported by the Washington Post.

  • Rodney Smolla, a leading First Amendment scholar, president of Furman University in South Carolina. and former dean at Washington and Lee University School of Law who filed a brief before the state bar on Hunter’s behalf, said Hunter’s blog resembles journalism more than advertising. I don’t think the mere fact that a lawyer has been involved in a case means everything a lawyer says about it is an advertisement for future clients. Lawyers talk about their own cases all the time, in public settings, publications … and members of the public are able to take that speech for what it’s worth.
  • The American Bar Association’s Commission on Ethics recently said no new restrictions were necessary to regulate lawyers’ use of technology and client development, and that prohibiting Internet and other electronic advertising would “impede the flow of information about legal services to many sectors of the public.
  • Robert O’Neil, founder and former director of the Thomas Jefferson Center for the Protection of Free Expression and former president of the University of Virginia: Hunter’s blog is not misleading, and called the bar’s standard on disclaimers “excessive.” That strikes me as overkill Pretty innocent stuff like Hunter’s [blog], I don’t think that’s regulable.

More sensational press from a reporter at major publications. The outcome is a chilling effect on lawyers looking to do more to help people through blogging. That’s a shame.

Hat tip to @ronfriedmann