LawPulse

Go forth and blog, experts say, but not without educating yourself about relevant ethical issues. 

Thinking about starting your own blog after reading this month's cover story (see page 236)? If so, don't hesitate - but do bone up on the ethics requirements regarding commercial speech and lawyer advertising of all states in which you practice or seek clients, ethics experts say. 

Are lawyer-bloggers lawyer-advertisers?

Lawyer advertising is, of course, commercial speech that may properly be regulated by state bar authorities. In Illinois, Rules of Professional Conduct 7.1 through 7.5 govern attorney advertising and contact with prospective clients. Of particular interest to attorney bloggers may be RPC 7.2, which provides in relevant part that a copy or recording of any advertisement or written communication pursuant to RPC 7.3 ("Direct Contact With Prospective Clients") must be kept for three years after its last dissemination, along with a record of when and where it was used.

Litigators, notes Attorney Registration and Disciplinary Commission Chief Legal Counsel James Grogan, should also consider RPC 3.6, which governs trial publicity, as well as with any court orders limiting what counsel may say in public regarding individual pending matters. Grogan also observes that judges must take care to comply with the rules of judicial conduct if they choose to blog.

Other states have their own versions of these rules, which may be substantially identical or contain nuances not present in Illinois' regulations. And a handful of states require lawyers to file advertising material with their state regulatory agency for approval and pay a fee, cautions Chicago attorney Will Hornsby, a staff counsel for the American Bar Association and adjunct professor at John Marshall Law School in Chicago. While that may not be onerous for an ad in the newspaper or telephone directory that remains the same for a long period, weblogs are dynamic, changing frequently if not every day.

Is an attorney's weblog advertising, and is it subject to the ethics requirements regarding contact with prospective clients? To his knowledge, Grogan says, no matters involving attorney blogs have come to Illinois ARDC's attention. He agrees with others that ethics rules and opinions have yet to address many lawyer communication issues involving new technology such as the Internet and blogging.

Grogan does recommend that practitioners note a recently issued ARDC Review Board opinion touching on attorney Web sites. In In re Moll, Commission No 01 CH 46 (Review Board recommendation issued March 22, 2006), the respondent was charged with making false or misleading communications about his eligibility to practice in violation of Rules 
7.1, 7.2(a), 8.4(a)(4) and Supreme Court Rule 770 when, during a three-month suspension, he continued to maintain his law firm Website, among other things.

While acknowledging that well-respected attorneys differed regarding the applicability of RPC 7.1 and 7.2 to attorneys suspended for less than six months, the Review Board determined that the continued use, during Respondent's period of suspension, of the name "Kenneth B. Moll & Associates, Ltd." on firm letterhead and the website and in court filings, without any disclosure of the fact that Kenneth B. Moll had been suspended from the practice of law for a period of three months, was misleading in violation of Rules 7.1 and 7.2. The use of the firm name while Moll was suspended was misleading because it created the impression, despite the signatures of other attorneys employed by the law firm, that Kenneth B. Moll was authorized to practice law, and he was not. 
Review Board opinion at 14-15. The Review Board recommended an additional 30-day suspension for attorney Moll, whose attorney has stated his intention to appeal. http://www.iardc.org/01CH0046RB.HTML. 

Are your blog posts commercial speech?

Illinois does not have any prescreening procedures or fees for lawyer advertising, notes Grogan. But many Illinois attorneys are admitted to practice in other jurisdictions or have clients in other states. Hornsby, who finds the subject of blogging and lawyer marketing so interesting that he blogs on his own time at "Will Hornsby on the Boundaries of Legal Marketing: Information and Insight on Marketing and Legal Ethics," found at www.willhornsby.com, says that "if you can structure your blog so that it doesn't by its content propose a commercial transaction, you have a good constitutional argument against being subject to commercial speech restrictions."

There are, however, few if any clear-cut rules. One factor tending to support a finding of commercial speech, suggests Hornsby, might be a blog's being funded by a law firm's marketing budget. Other factors might be explicit invitations to retain the blogger-attorney as counsel on the blog itself, or client testimonials posted either by the blogger or as comments. While the lawyer-blogger may eliminate these factors and simply include a link to the lawyer's firm website for those wishing to find out further information, Hornsby cautions, "This is a gray area. There's no authority yet." 

Stick to the facts, avoid superlatives

Illinois' neighbor to the south, Kentucky, requires lawyers to submit each advertisement with a fee to a commission of the Kentucky Bar Association and is attempting to grapple with attorney blogs. Steven Pulliam, deputy bar counsel for the Kentucky Bar Association, says the Kentucky Attorneys' Advertising Commission has proposed a rule change to Kentucky's Ethics 2000 Committee to clarify its existing practice.

Proposed SCR 3.130(7.02) would except from the definition of advertising "Information and communication by a lawyer to members of the public in the format of web log journals on the internet that permit real time communication and exchanges on topics of general interest in legal issues, provided there is no reference to an offer by the lawyer to render legal services."

Hornsby's advice: Go forth and blog. A lawyer may blog as part of an effective marketing strategy but still tailor the blog so as to constitute non-commercial speech, he believes. "When lawyers avoid commercial speech and keep the discussion focused on the issues rather than on the quality of legal services that are provided, they are in a position to lead potential clients to a conclusion that they are authorities on the subject without having to declare that they're the best." Q