The name of the contributor of a law blog post stays with the blog post, as its author, forever. Just as if the blogger wrote a book or a law review article.
If a blogging lawyer leaves the law firm, the appropriate thing for a law firm to do is to let the blogging lawyer take their law blog.
If the blog is a multi-author blog, things may get stickier. But it’s very easy to “port” the blog posts into a file for the lawyer – if the firm is not leaving the posts up in the lawyer’s name.
I asked on Twitter what folks thought a law firm’s obligation was as to leaving a blogging author’s name on blog posts.
When a blogging lawyer leaves a law firm and the firm retains their blog, wouldn’t the law firm need to keep the lawyer’s name on any blog posts that it displayed online or syndicated? Thoughts?— Kevin O'Keefe (@kevinokeefe) April 27, 2021
And received all sorts of answers.
- Convert the posts to guest authors in the original lawyer’s name.
- Convert the byline to the firm’s name with the original author listed as the author in the body copy.
- Some firms had deleted posts or converted the byline to “staff.”
- Depends on the trademark or the intellectual property rights. If the firm owns, they can do as they please.
I understand that everything created during your time at the law firm is the firm’s (except maybe your children), but what about the ethical rules in play
ABA Model 7.1 regarding advertising communications (each state would have a comparable rule) provides:
“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.”
Do anything to imply that the lawyer who wrote the post did not, such as deleting the lawyer’s name or inserting the firm’s name, is a misleading communication. Doesn’t matter who owned the blog post.
Tossing out the original lawyer’s posts or making them unavailable in any way under the original lawyer’s name also raises an ethical issue.
Law blog posts are the law in the sense that that they are providing legal insight and commentary on niches never covered before. Blog posts, with the author’s name, drive legal discourse and are routinely cited by title and author by lawyers and the courts.
The Preamble of the Model Rules, of which each state will have a similar provision, makes clear a lawyer’s obligation to cultivate knowledge of the law for the public and foster access to the law.
“As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.”
Eliminating or altering the author of law blog posts flies in the face of the ABA’s preamble. Changing the author of the commentary in the law, in effect, changes the legal commentary altogether.
We’re charting new ground in legal blogging. Marketing guidelines, partnership agreements or corporate bylaws may not be decisive here.
The law, legal publishing standards, and doing the right thing, may be controlling here.