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Is Attorney Blogging a “Communication” Subject to the Rules of Professional Conduct?

The Way eDiscovery Should be Done….

 

 

The topic of legal blogging is outside the normal area that I cover in this eDiscovery blog, but I think it is important enough to bring to the attention of our reading audience.    After a number of years, no one really thinks about blogging anymore, it just is.  However, the State Bar of California recently weighed in on this topic with Ethics Opinion 2016-196 and every lawyer who publishes a blog in California should be aware of the implications of the opinion. (And those in other states need to be aware of local opinions as well).

The basic questions addressed in the Ethics Opinion are when 1) A blog post becomes a “communication”, as defined under the RPC and the State Bar Act, and 2) If it is deemed a communication, is it “attorney advertising”?

A Basic Definition

What constitutes a blog?  And are your words on Facebook, Twitter and Instagram also “blogging” under this opinion? The answer: If your words are legal in nature and/or purport to advertise your services, then they are likely to be considered blogging.  In fact the opinion provides the following digest of definitions of what constitutes a communication that should be examined for applicability:

  1. Blogging by an attorney is likely to be a communications subject to the legal ethics advertising if “the blog expresses the attorney’s availability for professional employment directly through words or invitation or offer to provide legal services, or implicitly through its description of the the type and character of legal services offered by the attorney, detailed descriptions of case results, or both”.
  2. If a blog is an integrated part of an attorney’s or law firm website that is subject to the rules regulating attorney advertising to the same extent the main law firm site is subject to advertising rules.
  3. A stand-alone blog by an attorney, even if discussing legal topics within or outside the authoring attorney’s area of practice unless the blog directly or implicitly expresses the attorney’s availability for professional employment.
  4. A stand-alone blog by an attorney on a non-legal topic is not a communication subject to legal ethics rules if it contains a link to the attorney or law firm’s professional website unless there is extensive or detailed information announcing the attorney’s availability to provide legal services. The full text of the ethics opinion may be found here.

What does this all Really Mean?

Let’s first start with the obvious.  This opinion is not ground breaking or new, it really codifies that which should already be clearly understood.  But that doesn’t mean that people are paying attention.  Technically, a blog post is the same as an article that a lawyer writes for a magazine or a newsletter distributed broadly that includes a signature blurb at the end that contains contact information. You would be subject to regulation for attorney advertising under either of these scenarios.

What is the obvious difference? In order to receive the magazine or the newsletter, a person needs to subscribe to the publication, receive it for free or be given a copy by someone who does subscribe to it.  A blog is the very definition of PUBLIC, it is available to anyone, at any time, at any place in the world who has access to the internet.  And because of the public nature of blogging, it can be read in any jurisdiction, even those that may not explicitly authorize attorney blogging.  If that is the case, could these publications constitute the unauthorized practice of law or be considered unauthorized advertising?

The likely conclusion is yes to both of these questions.  So what is an attorney to do? First review this ethics opinion in its entirety to make sure you understand the nuances discussed.  And perhaps even more importantly, make sure that you have a clear DISCLAIMER that states that the information that appears in your posting are your personal views and opinions and not those of your law firm or other official position that you may hold.  Most problems can be eliminated with a proper Disclaimer referenced that is accessible to all readers.

The Takeaway

A blog by an attorney will not be considered a “communication” subject to rule 1-400 or an “advertisement” subject to Business and Professions Code sections 6157, et seq., unless the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly, for example, through a detailed description of the attorney’s legal practice and successes in such a manner that the attorney’s availability for professional employment is evident.

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