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Avvo, Inc. Confidential - ©2014
Ethics of Blogging for Lawyers
by Josh King
Avvo, Inc.
Avvo, Inc. Confidential - ©2014
Josh King
General Counsel &
Vice President, Business Development
Avvo, Inc.
Twitter: @josh...
Avvo, Inc. Confidential - ©2014
• The Blogging Landscape
• Blogs: “Attorney Advertising” Under the RPC?
• . . . or Express...
The Blogging Landscape
Avvo, Inc. Confidential - ©2014
Avvo, Inc. Confidential - ©2014
Avvo, Inc. Confidential - ©2014
Avvo, Inc. Confidential - ©2014
Legal Blogging Tips & Tricks
Consumption – Use A Reader
Tracking – Use Google Alerts
Finding Blogs to Read – Blogrolls
Blogging Platforms
RPC: Blogs as “Attorney Advertising”
“A lawyer shall not make
a false or misleading
communication about the
lawyer or the lawyer's
services.”
“A truthful statement is
also misleading . . . “
“. . . if there is a
substantial likelihood that
it will lead a reasonable
person . . .”
“. . . to formulate a
specific conclusion about
the lawyer or the lawyer's
services . . .”
“. . . for which there is no
reasonable factual
foundation.”
Types of RPC Restrictions
• Discussions of results obtained
• Comparisons to other attorneys
• Testimonials or client revi...
Your Blog & the First Amendment
What “Communication” Can Be Regulated?
Regulation of
“Commercial Speech”
Central Hudson Gas &
Electric Corp. v Public
Service Commission
(1980)
“Commercial speech”
defined
“That which does no
more than propose a
commercial
transaction.”
“Mixed” Content
• Dex Media v. City of Seattle (2012)
• Is publication as a whole commercial
speech?
• Ad format
• Referen...
Avvo, Inc. Confidential - ©2014
Hunter v. Virginia State Bar
Avvo, Inc. Confidential - ©2014
Blogging as Advertising
Avvo, Inc. Confidential - ©2014
Blogging as Advertising
Avvo, Inc. Confidential - ©2014
Blogging – Non-Advertising
Avvo, Inc. Confidential - ©2014
Blogging – Non-Advertising
Defamation and Third-Party Comments
“The Law that Makes the Internet Go”
• 47 U.S.C. § 230
• Commonly known as “CDA 230”
• “No provider or user of an interact...
Defamation Basics
• A claim for damages to reputation based on false statements of fact
• Truth is an absolute defense
• O...
Avvo, Inc. Confidential - ©2014
Defamation Risks in Commentary
Avvo, Inc. Confidential - ©2014
Anti-SLAPP
Avvo, Inc. Confidential - ©2014
Unmasking Anonymous Commentors
Blogging About Clients
In re Peshek (2009)
• Attorney blogger disciplined for referring to criminal clients
• Used alias, but court determined th...
Copyright Considerations
Fair Use & “Borrowing”
• Quotations for criticism and commentary
• The test for fair use
• “Transformative” uses
• Parody ...
Avvo, Inc. Confidential - ©2014
Josh King
General Counsel &
Vice President, Business Development
Avvo, Inc.
Twitter: @josh...
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Avvo Webinar: Ethics of Blogging for Lawyers

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What are the primary legal issues that arise when blogging? Josh King, Avvo's General Counsel and VP of Business Development, will review the basics of getting started with blogging, and cover some of the potential pitfalls that face bloggers in general – and legal bloggers in particular.

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  • These are the big areas; there are others and may be special concerns in particular practice areas.
  • Why blogging is good for lawyers My personal experience: Networking and professional satisfaction Makes me a better lawyer NOT a form of advertising Lots of approaches, as seen on next few slides Solo/small firm Big firm Niche practices Group blogs
  • Solo / small firm
  • Large firm
  • Group blog
  • Niche practice. Mike and Mark Walsh.
  • Why blogging is good for lawyers My personal experience: Networking and professional satisfaction Makes me a better lawyer NOT a form of advertising Lots of approaches, as seen on next few slides Solo/small firm Big firm Niche practices Group blogs
  • Feedly, Newsblur, The Old Reader are all alternatives to Google Reader
  • Example from Simple Justice. Look at each of these blogs. Each will likely have blog rolls of their own. Go on from there . . .
  • Many options, from free to premium. But for anyone who wants to dive right in, the free version of wordpress is your best bet.
  • ABA Model Rules – concern of many lawyers
  • Start with one fundamental issue – the breadth of the rules governing attorney advertising.
  • Primary areas covered by RPC
  • Content-based restrictions on speech are subject to “strict scrutiny.” Government carries burden of proving that restrictions are necessary to meet a compelling state interest . . . which is why so many of these restrictions are stricken.
  • Commercial speech, is subject to the lesser “intermediate scrutiny” standard. Government still carries the burden.
  • Bolger v Young's Drug Products Corp., (1983)
  • In close cases, courts apply a 3-part test (all parts must be met):Is the format something the would be considered advertising? (Yellow Pages were NOT in Dex Media!)Is there a reference to a specific product? Again, NOT in Dex Media.What is the economic motive? Met in Dex Media. But a long line of Supreme Court cases have found that an economic motivation alone is “clearly insufficient” to turn materials into commercial speech.And even if this test is met, full protection will apply if the commercial speech is “inextricably intertwined” with non-commercial speech.
  • 2/28/13: The factors that drove a divided Virginia Supreme Court to find that Hunter’s blog was advertising included: 1) most posts predominantly described cases where Hunter got a favorable result for a client; 2) most posts mentioned the name of Hunter’s law firm (as well as his own name); 3) Hunter’s blog was a page on his firm’s commercial website, rather than a stand-alone site; 4) the blog used the same “frame” as the website, which prominently features the name of the firm and a “contact us” form; and 5) the lack of ability for others to post comments on blog posts.
  • Dex Media test would apply to regulations that govern the entire blog. Regulation of advertising messages contained within the blog could still survive (just as ads within the yellow pages could be regulated)Apply Dex Media test to this “blog” – which is really just a website. Advertising focus (note prominent chat, 1-800 number, promo), single product (the firm), economic motivation. And not likely “inextricably intertwined” with non-commercial messages.
  • Same here – just a website, prominent advertising information, single product.
  • Unlike the prior examples, headline is the blog itself – not an ad for the firm. Much more like editorial magazine.
  • Again, look at context and format – is it more or less like an ad?
  • Mark Steyn example – suggesting academic dishonesty
  • Well-established first amendment right to anonymity. Many states use the Dendrite test (named after NJ case): Multiple steps, but primary requirement is that the Plaintiff have evidence supporting a prima facie case. The judge then balances the defendant’s First Amendment right to anonymity against the strength of the prima facie case and the need to ID the defendant.** and always consider the Streisand Effect **
  • Not an issue if you are reasonably careful.Test for FU: 1) purpose and character of the use (transformative vs. derivative uses); 2) nature of the copyrighted work; 3) amount of work used; 4) effect of use on market value for workDMCA not usually an issue for legal bloggers, but may want to file for DMCA agent if you start getting a lot of comments.
  • Transcript of "Avvo Webinar: Ethics of Blogging for Lawyers"

    1. 1. Avvo, Inc. Confidential - ©2014 Ethics of Blogging for Lawyers by Josh King Avvo, Inc.
    2. 2. Avvo, Inc. Confidential - ©2014 Josh King General Counsel & Vice President, Business Development Avvo, Inc. Twitter: @joshuamking Email: josh@avvo.com Introduction
    3. 3. Avvo, Inc. Confidential - ©2014 • The Blogging Landscape • Blogs: “Attorney Advertising” Under the RPC? • . . . or Expression Protected by the First Amendment? • Defamation and Third-Party Comments • Blogging About Clients • Copyright Considerations • Closing Thoughts Overview
    4. 4. The Blogging Landscape
    5. 5. Avvo, Inc. Confidential - ©2014
    6. 6. Avvo, Inc. Confidential - ©2014
    7. 7. Avvo, Inc. Confidential - ©2014
    8. 8. Avvo, Inc. Confidential - ©2014
    9. 9. Legal Blogging Tips & Tricks
    10. 10. Consumption – Use A Reader
    11. 11. Tracking – Use Google Alerts
    12. 12. Finding Blogs to Read – Blogrolls
    13. 13. Blogging Platforms
    14. 14. RPC: Blogs as “Attorney Advertising”
    15. 15. “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services.”
    16. 16. “A truthful statement is also misleading . . . “
    17. 17. “. . . if there is a substantial likelihood that it will lead a reasonable person . . .”
    18. 18. “. . . to formulate a specific conclusion about the lawyer or the lawyer's services . . .”
    19. 19. “. . . for which there is no reasonable factual foundation.”
    20. 20. Types of RPC Restrictions • Discussions of results obtained • Comparisons to other attorneys • Testimonials or client reviews • Superlatives (PA technically bars attorneys from labeling themselves as “experienced” or “competent”) • Statements that imply the ability to get results • “Real-time, electronic solicitation”
    21. 21. Your Blog & the First Amendment
    22. 22. What “Communication” Can Be Regulated?
    23. 23. Regulation of “Commercial Speech”
    24. 24. Central Hudson Gas & Electric Corp. v Public Service Commission (1980)
    25. 25. “Commercial speech” defined
    26. 26. “That which does no more than propose a commercial transaction.”
    27. 27. “Mixed” Content • Dex Media v. City of Seattle (2012) • Is publication as a whole commercial speech? • Ad format • Reference to specific product • Economic motive • Even if so, full protection applies if commercial/non-commercial speech is “inextricably intertwined.”
    28. 28. Avvo, Inc. Confidential - ©2014 Hunter v. Virginia State Bar
    29. 29. Avvo, Inc. Confidential - ©2014 Blogging as Advertising
    30. 30. Avvo, Inc. Confidential - ©2014 Blogging as Advertising
    31. 31. Avvo, Inc. Confidential - ©2014 Blogging – Non-Advertising
    32. 32. Avvo, Inc. Confidential - ©2014 Blogging – Non-Advertising
    33. 33. Defamation and Third-Party Comments
    34. 34. “The Law that Makes the Internet Go” • 47 U.S.C. § 230 • Commonly known as “CDA 230” • “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” • Blanket immunity from defamation liability for third party comments • Preempts state law
    35. 35. Defamation Basics • A claim for damages to reputation based on false statements of fact • Truth is an absolute defense • Opinion is usually a defense • Heightened standard for public figures to claim defamation • Other important defenses: • Substantial truth • Fair report • Statute of limitations & the “single publication” rule
    36. 36. Avvo, Inc. Confidential - ©2014 Defamation Risks in Commentary
    37. 37. Avvo, Inc. Confidential - ©2014 Anti-SLAPP
    38. 38. Avvo, Inc. Confidential - ©2014 Unmasking Anonymous Commentors
    39. 39. Blogging About Clients
    40. 40. In re Peshek (2009) • Attorney blogger disciplined for referring to criminal clients • Used alias, but court determined the identities could be figured out • Confidential info • Non-confidential info that may be “embarrassing or detrimental” to clients
    41. 41. Copyright Considerations
    42. 42. Fair Use & “Borrowing” • Quotations for criticism and commentary • The test for fair use • “Transformative” uses • Parody vs. Satire • Special considerations for photos • Government documents • DMCA notices
    43. 43. Avvo, Inc. Confidential - ©2014 Josh King General Counsel & Vice President, Business Development Avvo, Inc. Twitter: @joshuamking Email: josh@avvo.com Questions? Stay up to date on developments in the law of social media – and get notification of upcoming free Avvo CLE webinars – with my new monthly email newsletter: “Socially Awkward – Where Social Media Meets the Practice of Law” Email “subscribe” to josh@avvo.com
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