Introduction

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.