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ABA Committee : State ethics rules on advertising may not apply to blogs and social networking

ABA American Bar Association The ABA Standing Committee on the Delivery of Legal Services is proposing changes to the ABA Model Rules of Professional Conduct (pdf) to take into account, among other things, the status of law blogs and social networks.

Rule 7.1 (Attorney Advertising) and Comment 1 to the rule currently provide:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

Comment [1] : This Rule governs all communications about a lawyer’s services, including advertising permitted by Rule 7.2. Whatever means are used by a lawyer to communicate with a potential client about the lawyer or the lawyer’s services to make known a lawyer’s services, statements about them must be truthful.

The Committee is recommending the following changes:

A lawyer shall not make a false or misleading communication to a potential client about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

Comment [1] : This Rule governs all communications about a lawyer’s services, including advertising permitted by Rule 7.2. Whatever means are used by a lawyer to communicate with a potential client about the lawyer or the lawyer’s services to make known a lawyer’s services, statements about them must be truthful.

One reason for the proposed change is that the Virginia Bar recently initiated disciplinary action against a lawyer who blogs about cases he handles under a section entitled, “This Week in Richmond Criminal Defense.”

Let alone the issues raised by blogging about pending cases, the Virginia Bar found that Rule 7.1 applies and the communications in the blog are de-facto misleading unless the lawyer complies with the disclaimer obligations imposed by the state for lawyer advertisements.

The Committee believes the Rule and Comments invite overreaching by states.

Even though the details of the commercial speech doctrine may be best left out of the Rule and Comments, the concept should not be ignored. The Committee is concerned that the breadth of the Comment as now written may exceed the state’s constitutional authority to impose limits on a lawyer’s free speech. It is long-standing constitutional doctrine that states may impose limitations on commercial speech, including prohibitions of false or misleading statements.

However, those limitations are confined to commercial speech and are not likely to be deemed as broad as “all communications about a lawyer’s services.” Commercial speech is defined as that which “beckons business” or “proposes a commercial transaction.” In fact, at least one case has held that the state lacks the right to impose limitations on a lawyer’s newspaper advertisement

when the content of the communication is political discourse and not commercial speech.

And that overreaching is particularly problematic in the case of blogs and social network sites.

This issue is again accentuated with the use of blogs and social networking by lawyers, where political discourse appears to be increasingly common. The Committee believes this issue is effectively addressed by amendment to the Rule that clarifies the Rule’s application is limited to communications directed to a potential client.

Any misleading communication made to other than a potential client, subjects the lawyer to discipline under Rule 8.4(c). (misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation)

It’s interesting to see that the ABA, rather than creating new ethics rules to cover blogging and social networking, is reigning in the application of existing rules.

This makes a lot of sense in that the existing rules are more than sufficient to cover an attorney’s use of blogs and social networking. As was the case of the telephone, we don’t need new rules each time there’s a change in the technology being used by attorneys.

No question many lawyers are using blogs for business development. They’re blogging to get new clients. Arguably if the lawyer’s blog does not “beckon business” or “propose a commercial transaction,” lawyer advertising rules, as outlined above, would not apply.

It’s analogous to the case where a Texas lawyer’s advertisement in the newspaper, though done with the intent to get exposure and clients, did not on the face beckon or solicit new business. The court there held it’s not the intent of the lawyer which governs, but the actual text.

In the case of law blogs, if you are including your contact info and/or describing the services you perform, it’s advisable to conclude that your state’s ethics rules as they pertain to advertising would apply.

That’s not a big deal in most cases as that will require you not to say anything misleading and, in some states, to include the phrase ‘attorney advertising’ in the footer of your blog.

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