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Blogging: A Double-Edged Sword for Attorneys?

June 2, 2017  |  7 min read

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In today’s competitive legal job market, both new and established attorneys face increasing pressure to pursue novel marketing avenues to build up their professional reputations and business. As a result, many lawyers are turning to blogging and social media writing to do this.  In fact, roughly 1 in 4 law firms today maintain a blog, while nearly 3 in 4 attorneys have a professional presence on social media.  

Although blogging can confer many benefits—fame, fortune, the adulation of your peers—it can also have its drawbacks. Consider, for example, John K. Bush, President Trump’s nominee for the Sixth Circuit. In his Senate Judiciary Committee questionnaire, Mr. Bush disclosed that he blogged pseudonymously for a standalone legal blog his wife launched, writing content that lambasted liberal and progressive causes and various sitting politicians.  

As a result, groups such as the Alliance for Justice have used his blog content against him in an attempt to pummel his appointment prospects. While Bush’s nomination is still pending, other judges and attorneys have faced potentially career-altering repercussions while blogging.  

Even Richard Kopf, a federal judge in Nebraska, wrote that one of the main reasons why he retired his widely read blog Hercules & the Umpire was because most his court’s employees felt his articles were an “embarrassment to the Court.”   

These revelations paint an unsettling picture for lawyers looking to capitalize on a major marketing and branding opportunity that is especially relevant in today’s social media-driven society. In addition, lawyers in many jurisdictions also face the ominous prospect that their posts could be regulated as attorney advertising or solicitation. While the Supreme Court eased restrictions on attorney advertising in Bates v. Arizona, state bar associations are still figuring out how to best cope with attorney blogging and social media marketing. This ongoing tussle between ethical and free speech considerations presents a host of issues that attorneys considering blogging need to sort out before starting.


The Ethics of Blogging

For most attorneys, the risk isn’t that their blogs will be pulled out before the Senate Judiciary Committee. It’s that their blogging may run afoul of professional regulations.

From an ethics standpoint, blogging is usually viewed through the lens of lawyer advertising and solicitation. While the ABA encourages attorneys to take advantage of technology-based opportunities—particularly given the internet’s strong reach with low-income potential clients—not all state bar associations are as optimistic.

Generally, most jurisdictions give attorneys leeway to write informational legal content, so long as they do not directly or implicitly advertise a lawyer’s services or availability for future work. Texas, for example, does not consider educational or informational blogs and status updates to be attorney advertising, but does consider a firm’s website and social media landing pages to be fair game for regulation.  

As always, however, there are jurisdictions that operate under different sets of rules.  California’s state bar association, for example, considers several factors when deciding whether to regulate blog posts as attorney-client communications. According to a recent ethics opinion, blog posts that could be classified as attorney-client communications include:

  1. Blogs and blog posts that express the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both; and
  2. Blogs that an integrated part of an attorney’s or law firm’s professional website. 

This, however, does not mean that licensed attorneys in California are completely off the hook if they publish standalone legal blogs unaffiliated with their commercial law firm websites or maintain blogs that covers non-legal topics. Standalone legal blogs, for example, can be regulated if they expressly or implicitly express the attorney’s availability for employment, while blogs about non-legal topics can be regulated if the attorney provides extensive and or detailed professional identification indicating that the attorney is available to provide services.

The most disturbing state bar association opinion on this issue, however, comes courtesy of the District of Columbia. In its opinion, the District’s bar association advises that blogging about certain legal trends or topics could bar an attorney from representing cases and clients with interests that run contrary to their opinions. The opinion states this is regulated under D.C. Rule of Professional Conduct 1.7(b)(4), which states that an attorney shall not represent a client with respect to a matter if "the lawyer's professional judgment on behalf of the client will be or reasonably may be adversely affected by . . . the lawyer's own financial, business, property or personal interests.”

The opinion goes even further by raising the possibility that an attorney’s online communications and interactions with people unknown to him or her could also create conflicts of interest. Therefore, if an attorney is licensed in the District of Columbia, he or she could theoretically create conflicts of interest with existing and potential clients by merely writing a blog and interacting with users in the comments section of the post or on social media.

 

Constitutional Safeguards for Legal Blogging

At what point, however, does the regulation of blogging devolve into unconstitutional censorship? The law is still evolving on this, but one ethics case from Virginia suggests that First Amendment doctrines regarding commercial speech can trump overzealous state bar blog policing.

In Frazier v. Virginia State Bar, the Virginia State Bar Association issued a public admonition against a Virginia attorney for publishing articles on his firm’s blog website that addressed cases he worked on with his clients. Although the cases the attorney had blogged about were completed and, in turn, matters of public record at the time he wrote about them, the state bar association sanctioned him for “disseminating client confidences” and for publishing content that “would be embarrassing or likely detrimental” to his clients without first obtaining their consent. Even though the bar association had suggested adding disclaimers to his blog—which was located on his firm’s website—both sides failed to agree upon mutually satisfactory disclaimer language.  

On appeal to the Circuit Court of the City of Richmond, the attorney raised First Amendment defenses, maintaining that his posts could not be regulated because they contained both political speech and public information protected under the First Amendment. After considering Frazier’s economic motives for writing his blog and the fact that he published his blogs on his commercial website without giving others the opportunity to comment, the court determined that Frazier’s posts amounted to commercial speech, and thus fell under the Central Hudson testThe court held that the state bar association had a substantial and justified government interest to require Frazier to include disclaimers on his blog to protect consumers from potentially misleading information. The court also held, however, that the state bar association’s attempt to prevent the attorney from writing about his resolved cases violated his First Amendment right to publish it, since there was no substantial likelihood that the content would materially prejudice pending cases.  

While Frazier represents one case study where the First Amendment can help attorney bloggers, it helps show that legal safeguards exist to encourage ethical attorney blogging.  

Despite the potential obstacles and compliance burdens, blogging can present great opportunities for new and established lawyers to grow their personal brands and build their professional reputations online. If you are considering blogging as a way of establishing or growing your reputation, do not be deterred by others’ opinions. Just be sure to review your jurisdictional guidelines for blogging and social media writing, and take all steps to ensure you’re managing your blog in accordance with all ethical considerations that may apply.

This post was authored by Eric Pesale, the founder of Write For Law, who writes regularly about eDiscovery, cybersecurity and other legal topics for law firms, publications, and companies. He is a graduate of New York Law School and the University of North Carolina at Chapel Hill, and recently passed the New York bar exam. Eric can be reached at eric@writeforlaw.com or on Twitter at @writeforlaw.