Lawyers of course have the First Amendment right of free speech in their blogs. Blogging is the same as writing articles for legal publications. The Supreme Court ruled that a state cannot ban commercial speech in Central Hudson Gas & Elec. Corp. v. Public Service Commission, 447 U.S. 557 (1980). However, a state’s rules of professional conduct do apply to commercial speech, or in this case, blog posts that are designed to generate new business.

1. Legal Ethics and Website
Marketing in 2016
Larry Bodine
Editor, The National Trial Lawyers

2. Today’s topics: 4 cases
The Power of Blogging
• Commercial Speech – Dex v. Seattle
• Blogging about cases – Hunter v. Virginia
• Blogging about clients & judges – In re: Peshek
• Lying online leads to a
$350,000 award against
client - Blake v. Giustibelli

3. Clients Go Online to Find Lawyers
Source: Hinge Marketing 2015

4. High Growth Firms Focus on Blogging
Source: Hinge Marketing
Heintz Marketing

5. Free Speech Right to Blog
• 1st Amendment freedom
of speech – opinions,
news, law, politics
• Commercial speech
• Speech that is false or
misleading
• High protection:
Abridging subject to
strict scrutiny
• Can be regulated, but
subject to intermediate
scrutiny
• No protection

6. Commercial speech
• An advertising format
• Reference to a specific product
• Economic motivation for publication
--Dex Media West, Inc. v. Seattle (9th Cir. 2012)

7. Regulating Commercial Speech
Rules of Professional Conduct focus on:
• Discussions of results obtained
• Comparisons to other attorneys
• Testimonials and recommendations
• Superlatives
• Statements that imply the ability to get results
• Real-time, electronic solicitation - email

8. Blogging about your own cases
Hunter v.
Virginia State
Bar (Va. S.Ct,
2013)
• Richmond, VA,
criminal
defense lawyer
• Posts about
cases he won

9. State Bar Charges
• Violates Rule 1.6 –“Disseminating client
confidences” obtained in the course of
representation without consent
▫ Info revealed in public judicial proceedings
▫ Interpretation violated the First Amendment and
dismissed the charge
• Violates 7.1, 7.2 – Advertising without
disclaimers - inherently misleading
▫ Potentially misleading commercial speech that the
state bar may regulate

10. Commercial speech 4 Ways
1. Mix of political
commentary and
self-promotion
2. Non-interactive –
no commenting
3. Contact Us form
4. Blog on law firm’s
commercial
website – not on
separate site
• Doesn’t post disclaimers
• Stops blogging about his
own cases

11. Blogging about clients and judges
Matter of Kristin
Ann Peshek (IL
S.Ct, 2010)
• Non-public
client confidence
• Called a judge “A
total asshole”
and “Judge
Clueless” –
protected
opinion?

12. The violations charged & upheld
• Rule 1.6(a) – revealing client confidences
• Rule 1.2(g) - failing to call upon a client to rectify a
fraud that the client perpetrated on the court
• 8 .4(a)(5) - conduct that is prejudicial to the
administration of justice
• Illinois Supreme Court Rule 770 - conduct which
tends to defeat the administration of justice or to
bring the courts or the legal profession into
disrepute
Cannot express negative opinion about
judges

13. Clients Lie in a Review about a Lawyer
• Blake & Birzon v. Ann-Marie
Giustibelli (Case No. 4D14-3231, FL 4th
District Court of Appeal, Jan. 6, 2016)
• Smears posted on Avvo & online
reviews
• $350,000 punitive damages
affirmed
• Defamatory factual allegations
that were provably false
Ann-Marie Giustibelli
Divorce Attorney
Plantation, FL

14. This lawyer represented me in my divorce. She was combative and
explosive and took my divorce to a level of anger which caused
major suffering of my minor children. She insisted I was an
emotionally abused wife who couldn’t make rational decisions
which caused my case to drag on in the system for a year and a half
so her FEES would continue to multiply!! She misrepresented her
fees with regards to the contract I initially signed. The contract she
submitted to the courts for her fees were 4 times her original quote
and pages of the original had been exchanged to support her
claims, only the signature page was the same. Shame on me that I
did not have an original copy, but like an idiot . . . I trusted my
lawyer. Don’t mistake sincerity for honesty because I assure you,
that in this attorney’s case, they are NOT the same thing. She
absolutely perpetuates the horrible image of attorneys who are
only out for the money and themselves. Although I know this isn’t
the case and there are some very good honest lawyers out there,
Mrs. Giustibelli is simply not one of the “good ones[.]” Horrible
horrible experience. Use anyone else, it would have to be a better
result.
Not libel

15. This lawyer represented me in my divorce. She was combative and
explosive and took my divorce to a level of anger which caused
major suffering of my minor children. She insisted I was an
emotionally abused wife who couldn’t make rational decisions
which caused my case to drag on in the system for a year and a half
so her FEES would continue to multiply!! She misrepresented her
fees with regards to the contract I initially signed. The contract she
submitted to the courts for her fees were 4 times her original quote
and pages of the original had been exchanged to support her
claims, only the signature page was the same. Shame on me that I
did not have an original copy, but like an idiot . . . I trusted my
lawyer. Don’t mistake sincerity for honesty because I assure you,
that in this attorney’s case, they are NOT the same thing. She
absolutely perpetuates the horrible image of attorneys who are
only out for the money and themselves. Although I know this isn’t
the case and there are some very good honest lawyers out there,
Mrs. Giustibelli is simply not one of the “good ones[.]” Horrible
horrible experience. Use anyone else, it would have to be a better
result.
Not libel

16. This lawyer represented me in my divorce. She was combative and
explosive and took my divorce to a level of anger which caused
major suffering of my minor children. She insisted I was an
emotionally abused wife who couldn’t make rational decisions
which caused my case to drag on in the system for a year and a half
so her FEES would continue to multiply!! She misrepresented her
fees with regards to the contract I initially signed. The contract she
submitted to the courts for her fees were 4 times her original quote
and pages of the original had been exchanged to support her
claims, only the signature page was the same. Shame on me that I
did not have an original copy, but like an idiot . . . I trusted my
lawyer. Don’t mistake sincerity for honesty because I assure you,
that in this attorney’s case, they are NOT the same thing. She
absolutely perpetuates the horrible image of attorneys who are
only out for the money and themselves. Although I know this isn’t
the case and there are some very good honest lawyers out there,
Mrs. Giustibelli is simply not one of the “good ones[.]” Horrible
horrible experience. Use anyone else, it would have to be a better
result.
Not libel

17. This lawyer represented me in my divorce. She was combative and
explosive and took my divorce to a level of anger which caused
major suffering of my minor children. She insisted I was an
emotionally abused wife who couldn’t make rational decisions
which caused my case to drag on in the system for a year and a half
so her FEES would continue to multiply!! She misrepresented her
fees with regards to the contract I initially signed. The contract she
submitted to the courts for her fees were 4 times her original quote
and pages of the original had been exchanged to support her
claims, only the signature page was the same. Shame on me that I
did not have an original copy, but like an idiot . . . I trusted my
lawyer. Don’t mistake sincerity for honesty because I assure you,
that in this attorney’s case, they are NOT the same thing. She
absolutely perpetuates the horrible image of attorneys who are
only out for the money and themselves. Although I know this isn’t
the case and there are some very good honest lawyers out there,
Mrs. Giustibelli is simply not one of the “good ones[.]” Horrible
horrible experience. Use anyone else, it would have to be a better
result.
Not libel

18. This lawyer represented me in my divorce. She was combative and
explosive and took my divorce to a level of anger which caused
major suffering of my minor children. She insisted I was an
emotionally abused wife who couldn’t make rational decisions
which caused my case to drag on in the system for a year and a half
so her FEES would continue to multiply!! She misrepresented her
fees with regards to the contract I initially signed. The contract she
submitted to the courts for her fees were 4 times her original quote
and pages of the original had been exchanged to support her
claims, only the signature page was the same. Shame on me that I
did not have an original copy, but like an idiot . . . I trusted my
lawyer. Don’t mistake sincerity for honesty because I assure you,
that in this attorney’s case, they are NOT the same thing. She
absolutely perpetuates the horrible image of attorneys who are
only out for the money and themselves. Although I know this isn’t
the case and there are some very good honest lawyers out there,
Mrs. Giustibelli is simply not one of the “good ones[.]” Horrible
horrible experience. Use anyone else, it would have to be a better
result.
Libel
Allegations that the lawyer
falsified a contract. These are
factual allegations, and the
evidence showed they were false.

19. Takeaways
• Freely discuss politics, legislation and the law
• If it is commercial speech, it is subject to rules of
professional conduct
• Use disclaimers when blogging about your cases
• Do not reveal client confidences online
• Do not call judges bad names
• Do not make defamatory factual allegations that
are provably false
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