Monday, January 31, 2011

Not enough information a good thing?

This blog entry in Solo Practice University, focuses on tips for lawyers who wish to blog. Again, it informs lawyers of the rules that they “might” be subject to. It directs solo practitioners to several Rules of Professional Conduct regarding whether blogs constitute advertising. The blog indicates that under Texas Rule 7.02 blogs are not advertising if they “consist of commentary or educational information.” However, how can a lawyer be sure that their blog fits in this category?

Does a blog such as this one help or hurt the legal community? Isn’t this sort of information giving lawyers a false sense of security when it comes to blogging?

Sunday, January 30, 2011

Anonymous blog may be subject to the Rules of Professional Conduct

Think that your anonymous blog (and subsequent blog comments) are not subject to the Rules of Professional Conduct? Think again. ( Here is the follow-up).

Saturday, January 29, 2011

Are you willing to bet your bar license against your blog?

Kevin O’Keefe’s blog “Real Lawyers Have Blogs” directly responds to the September Paper’s question relating to whether the current Model Rules adequately address the issue of lawyers’ use of social media, or whether new Rules should be written.

In this blog entry, he provides advice to lawyers who want to be sure that their blogs follow the Rules of Professional Conduct in their respective states:

• Don't blow client confidences.
• Don't give legal advice (just general information for education purposes) when speaking among the public.
• Don't do anything where a reasonable person could argue there was an attorney client relationship.
• Don't say anything misleading about your capabilities or any other matter.
• Don't solicit work.
• Don't violate conflict of interest rules.

But is it really that easy? How can a lawyer be certain that they have crossed one of the neatly laid-out rules of ethics that Mr O’Keefe has suggested? Any lawyer, if asked what they remember from Professional Responsibility class in law school, their answer would certainly be: don’t share client confidences and don’t lie to opposing counsel or the court. However, the use of social media presents sticky situations that do not fit neatly into he above categories. Addressed later in this blog is the issue of blogs as attorney advertising.

One thing is certain, however: If asked, many blogging attorneys would not be willing bet their bar license against their blog. Given the choice of potentially violating a rule they were not aware applied to them, or ceasing blogging altogether, lawyers would most likely prefer the latter. Therefore, the question becomes whether the two extremes are necessary (and, for that matter, constitutional). This is the question that the September paper was attempting to address. One of which, I propose, was not answered adequately by Mr. O’Keefe’s neatly packaged response.

Friday, January 28, 2011

Why do lawyers blog?

The beginning stage of examining the topic of lawyer blogging and legal ethics is asking the question of why lawyers even blog in the first place. Why take the risk of being in violation of a Rule of Professional Conduct under the State bar, just for the sake of blogging?

In the April/May 2006 issue of Law Practice Magazine, this article examines, among other topics, the reasons that lawyers blog and whether lawyers are successful in achieving their objectives behind blogging.

Here are some thoughts on the article on why lawyers blog:
(1) Some attorneys blog to reach a wider audience than that would otherwise not be accessible. (like Ernie the Attorney )
(2) Other attorneys blog to get direct, immediate communication with a wide audience (such as Dennis Kennedy of The Dennis Kennedy Blog )
(3) Lastly, others, most controversially, use blogging as a marketing tool. (like The Legal Underground )

Next, it examines whether blogging “works” for lawyers in achieving their objectives behind blogging. According to the article, then, does blogging “work” for attorneys? The overwhelming consensus is that blogging achieves the goal of networking and increasing business.

The conclusion, therefore, is that lawyers blog, blogs are a useful tool in the legal community, and that they are not going away any time soon. Therefore, it is our job as lawyers to examine all of the ethical implications that surround blogging.

Thursday, January 27, 2011


In 2009, Lead Networks conducted the survey "Networks for Counsel" with the key objective of determining the impact of social media on the legal profession. The survey was administered to 1,474 lawyers-764 private practice lawyers and 710 corporate counsel lawyers.

Its key findings were not surprising: the use of social networking expanded greatly between 2008 and 2009. Three-quarters of all counsel, as of 2009, were part of a social networking site. Of those that used social media sites, 75% of private counsel and 62% of corporate counsel regularly checked and commented on blog sites. It is clear, therefore, that social media is not a phenomenon that is going to disappear in the near future.

Due to the boom of the Web 2.0, the legal profession has not yet caught up with current technology. While the Model Rules of Professional Conduct are regularly reviewed by the American Bar Association, they have not yet caught up with the current state of the legal profession. Therefore, it is a topic of ever expanding importance; one which must be addressed to avoid future discipline of lawyers who were not clear on the rules of which they should follow.

Relating to the issue of lawyers' use of social media, this blog will address the specific issue of lawyer blogging. More specifically, this blog will directly address the following questions, posed by the September Paper released by the ABA Commission on Ethics 20/20.

1. Under what circumstances should the Model Rules of Professional Conduct govern a lawyer's participation in blogs, given that such activities often have both advertising and non-advertising functions?

2. Should the Commission draft a policy statement for the House of Delegates to consider or a white paper that sets out certain guidelines regarding lawyers’ use of blogs? Alternatively, or in addition, should the Commission propose amendments to Model Rules 7.2, 1.18, 8.4(f), 4.2, or 4.3, or the Comments to those Model Rules in order to explain when communications or other activities on blogs might trigger ethical obligations under the Model Rules? If so, what amendments should the Commission propose?

3. Can lawyers create online discussion boards without disclosing that the discussion boards serve a client development function? If lawyers leave comments on such discussion boards or on blogs, are those comments subject to the Model Rules of Professional Conduct? Should the Commission offer a policy statement or white paper that sets out certain guidelines regarding lawyers’ use of such sites? Alternatively, or in addition, should the Commission propose amendments to Model Rules 1.18 or 7.2 or the Comments to those Model Rules in order to explain when these activities might trigger ethical obligations under the Model Rules? If so, what amendments should the Commission offer?

As speech is at the core of the legal profession, the overarching issue within this discussion will be what First Amendment protections are triggered under the regulation of these rules.