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California Bar: Traditional law blogs lie outside websites

February 28, 2016

If you are a lawyer looking to blog to demonstrate your knowledge of the law, enhance your reputation in your field and grow your business as a result, your blog belongs on a standalone site outside of your law firm website.

If you are a lawyer looking to advertise your services, akin to television or yellow page ads, through “blogging,” then you have a page or section of your website, indistinguishable from the other sections in layout and features, designated as a “blog.”

That’s the gist of a Final Opinion just released by the State Bar of California Standing Committee on Professional Responsibility and Conduct (“Bar”).

By its very nature, blogging raises First Ammendment free speech issues. As with newspaper and magazine articles, practice guides, books, law review articles, and presentations, lawyers could reasonably expect that blogging would not be subject to the restrictions which govern lawyer advertising.

The Bar agreed.

Most “traditional” blogs expressing the blogger’s knowledge and opinions on various topics and issues, legal and non-legal will be regarded as core or political speech.

But what about blogs placed inside of websites to garner website traffic or showcase knowledge along side lawyer bios or practice group descriptions?

The Bar had already decided that a website and any information included in it to be an advertisement.

Professional websites maintained by attorneys and law firms consistently have been found to concern their availability for professional employment and, thus, are attorney advertising subject to regulation.

The Committee further expressed the belief that “this conclusion is not altered by the inclusion in the web site of information and material of general public interest.”

Accordingly, the Bar found that blogs inside of websites to be advertising.

What’s the big deal? Just throw the disclaimer that your blog is attorney advertising at the bottom.

From Avvo’s General Counsel, Josh King:

…[I]f a blog is subject to bar regulation as “advertising,” lawyers suddenly need to worry about their expression being regulated under the lesser standard of intermediate scrutiny. Their competitors can file grievances with the bar over what would ordinarily be editorial content, and as “advertising” that writing will also be open to attack on publicity rights grounds. 1 Lawyers likely lose the protection of California’s anti-SLAPP law to defend their free speech rights, as well as most fair use defenses to copyright actions. In short, they’ll need to consider the fact that anything they write is putting their license at risk. Under such a regime, it’s a fair bet that many legal bloggers will censor themselves.

More important is acknowledging that blogs inside of a website are not as effective when it comes to business development.

Again from King:

…[In] my view legal blogs are more authoritative and have more opportunity to develop a “voice” when they live somewhere other than a staid old law firm website. 1 If lawyers need an ethics-based excuse to move to that structure, so much the better.

Law blogs are effective because they establish a lawyer as a reliable and trusted authority. Trust, engagement and relationships are stifled when you place text called a blog inside of a website.

Most lawyers have grown their business through relationships and word of mouth, not advertising. If you’re one of these lawyers, you don’t place your blog inside a website so as to begin advertising.

Now the largest legal ethics body even tells you so.

Image courtesy of Flickr by Kainet