Blogging for lawyers legal and ethical considerations
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This document discusses legal and ethical considerations for lawyers who blog. It addresses whether blogs constitute attorney advertising under ethics rules and if they receive First Amendment protection. It also covers issues like defamation for third-party comments, discussing clients, and copyright. Lawyers need to avoid misleading statements in blogs and be careful not to reveal confidential client information. Blogs receive some protection under Section 230 of the CDA and fair use doctrines, but lawyers still face risks and should follow advertising rules to the extent their blogs solicit business.
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Blogging for lawyers legal and ethical considerations
- 1. Avvo, Inc. Confidential - ©2013 Blogging for Lawyers: Legal & Ethical Considerations by Josh King Avvo, Inc.
- 2. Avvo, Inc. Confidential - ©2013 Josh King General Counsel & Vice President, Business Development Avvo, Inc. Twitter: @joshuamking Email: josh@avvo.com Introduction
- 3. Avvo, Inc. Confidential - ©2013 • 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
- 5. Avvo, Inc. Confidential - ©2013
- 6. Avvo, Inc. Confidential - ©2013
- 7. Avvo, Inc. Confidential - ©2013
- 8. Avvo, Inc. Confidential - ©2013
- 9. Legal Blogging Tips & Tricks
- 10. Consumption – Use A Reader
- 11. Tracking – Use Google Alerts
- 12. Finding Blogs to Read – Blogrolls
- 14. RPC: Blogs as “Attorney Advertising”
- 15. “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services.”
- 16. “A truthful statement is also misleading . . . “
- 17. “. . . if there is a substantial likelihood that it will lead a reasonable person . . .”
- 18. “. . . to formulate a specific conclusion about the lawyer or the lawyer's services . . .”
- 19. “. . . for which there is no reasonable factual foundation.”
- 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. Your Blog & the First Amendment
- 22. What “Communication” Can Be Regulated?
- 24. Central Hudson Gas & Electric Corp. v Public Service Commission (1980)
- 26. “That which does no more than propose a commercial transaction.”
- 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. Avvo, Inc. Confidential - ©2013 Hunter v. Virginia State Bar
- 29. Avvo, Inc. Confidential - ©2013 Blogging as Advertising
- 30. Avvo, Inc. Confidential - ©2013 Blogging as Advertising
- 31. Avvo, Inc. Confidential - ©2013 Blogging – Non-Advertising
- 32. Avvo, Inc. Confidential - ©2013 Blogging – Non-Advertising
- 33. Defamation and Third-Party Comments
- 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. 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. Avvo, Inc. Confidential - ©2013 Defamation Risks in Commentary
- 37. Avvo, Inc. Confidential - ©2013 Anti-SLAPP
- 38. Avvo, Inc. Confidential - ©2013 Unmasking Anonymous Commentors
- 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
- 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. Avvo, Inc. Confidential - ©2013 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
Editor's Notes
- 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.