Sunday, February 27, 2011

The lawyers' right to tweet

An article in the February 25th edition of the ABA Journal presents an issue at the very core of this blog.


The statement which is of particular interest is George Washington University Law School Professor Jonathan Turley’s response to the firing:

He stated:
"There is obviously a great deal of anger over these comments, but the real question is whether a public employee like Cox has any protection for comments made as a private citizen."

The issue that we must struggle with is whether lawyers, as “officers of the court” are ever really considered to be private citizens. It is clear that, as lawyers, were are held to the state bar’s Rules of Professional Conduct 24 hours a day, 7 days a week. Our bar cards are not retired for the evening when we leave the office. Indeed, there is no question that lawyers are held to a higher standard than laypeople. Therefore, while the firing of a layperson might otherwise be an infringement of the First Amendment right to Free Speech, a separate analysis must be conducted with regard to lawyers.

When a lawyer speaks, even if not done on company time, he or she is representing not only the company that they work for, but also the law. Here, there is not only an issue that Cox was an attorney, but also that he was employed by the Indiana Attorney General’s Office. Therefore, not only was his statement made as an officer of the court, but also, as a State employee.

In this situation, I believe the waters are further muddied by the State+officer of the court combination. While it could be argued that as officers of the court we have a greater right than the layperson, due to the fact that we know the law, where the State becomes involved, the issue is framed in a significantly different manner.

It comes down to the issue of professionalism: How can the general public feel safe that such a man represents the State in court? How can they ensure that their tax dollars are adequately being spent? What sort of message does the tweet send to the general public about he sort of attorneys that represent the state?

**A screenshot of the actual tweet that caused Cox to be fired.

Saturday, February 26, 2011

Good lawyers use facebook

This is an expansion to an earlier post regarding attorneys using google during the voir dire process of jury selection.

Basically, the message here is that budding attorneys better get on the social network bandwagon, if they have any hope of rising to the top. All the more reason to make sure that we are acting ethically in the process of using social media.

Wednesday, February 23, 2011

Lawyer blogs banging down the door of potential clients.

In this blog I discussed whether lawyer blogs fit more closely in the category of in-person solicitation, or direct mail. While I concluded that there is no categorical rule the court can use to decide where lawyer blogs fit, Florida Bar v. Went For It [1] might provide some guidance on the distinction.

In Went For It, the Florida Bar adopted new standards as part of a 1989 study regarding attorney advertising. These standards placed a 30 day moratorium on direct and indirect lawyer solicitation of accident victims and their family members. Plaintiff, Stewart McHenry, owner of Went For It, Inc, a lawyer referral service, filed suit, arguing that the regulations were a violation of his First and Fourteenth Amendment rights to the United States Constitution.

In holding that the Florida Bar regulations on advertising were constitutional under the First Amendment, the court stated:
We have always been careful to distinguish commercial speech from speech at the First Amendment’s core. Commercial speech enjoys a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values. And is subject to modes of regulation that might be impermissible in the realm of noncommercial expression.

Accordingly, the court applied the intermediate scrutinyCentral Hudson test:
1. The government must assert a substantial interest in support of its regulation;
2. The government must demonstrate that the restriction on commercial speech directly and materially advances that interest; and
3. The regulation must be narrowly drawn.

First, regarding the government’s substantial interest, the court listed three government interests it deemed as substantial:

1. The government’s interest in establishing licensing standards;
2. The protection of well-being, tranquility, and privacy of the potential clients’ home, and
3. States can legislate to avoid intrusion

The court highlighted the main interest of the State as protecting the well-being, tranquility, and privacy of the potential clients’ home. The court reasoned that the purpose of the ban is to “forestall the outrage and irritation” with the legal profession when the victims have the accident fresh in their minds. Therefore, the court emphasized its concern for the appearance of the lack professionalism where an attorney makes direct contact with a recent accident victim.

Next, regarding the material advancement of the government’s interests, the court indicated that the State provided statistical and anecdotal data which displayed the fact that the Florida regulations would further the State’s goals.

Lastly, regarding whether the regulations best “fit” to serve the State’s interests, the Court stated that there is no other alternative in regulating the speech in a less restrictive way. Furthermore, the regulation merely imposes a moratorium; it does not impose an outright ban.

The court distinguished this case from Shapero in several ways. First, unlike Shapero, the treatment of the potential client’s privacy was casual. Next, Shapero dealt with a broad ban on all advertising, rather than a mere moratorium. Lastly, the State in Shapero did not give any evidence of actual harm caused by targeted direct mail.

The question remains with respect to blogging: Is the regulation of blogging constitutional under the First Amendment? Due to the inconsistency of Supreme Court’s rulings with respect to attorney speech, the answer to this question becomes even fuzzier than it would otherwise be.

Putting all of the attorney cases together, we know:
1. The Central Hudson test is the current test for determining whether attorney speech regulations are constitutional under the United States Constitution;
2. The ban of in-person solicitation of clients is constitutional under Ohralik;
3. Outright bans on attorney advertising via direct mail are unconstitutional under Shapero;
4. 30 day moratoriums on attorney advertising via direct mail are constitutional under Went For It.

As discussed previously, lawyer blogs could arguably be either direct mail or in-person solicitations. While Went For It did not provide any distinction between in-person and direct mail analysis, the court provided clarification to Shapero when it discussed the fact that the privacy of the individuals in their homes is the most important interest due to the issue regarding the appearance of attorney professionalism.

In the blogging context, this is especially troublesome. While lawyers are not approaching potential clients in the traditional sense, a lawyer can “approach” a client over the internet. While sending an advertisement in the mail can make this same level of contact, the level of privacy over the internet is much more concerning. Unlike direct mail, a lawyer can contact a potential client in real time, meaning that the lawyer can, if they wish, speak to the client as the client is in the privacy of their own home, while they are in their own home. A potential client can choose not to look at lawyer blogs. However, with the invention of such sites as facebook, this becomes increasingly more difficult. Facebook give the availability of advertisers to see what people might be interested in.

Here is an example:

If any of the links are clicked on, a person would be led to that site’s page. The court’s main concern with the lack of privacy is that professionalism of attorneys may suffer due to lawyers’ ability to contact potential clients when they are at their most vulnerable. Is this concern any lower for lawyer blogs? Certainly not. Therefore, I would argue that state bar regulations for lawyer blogs that are no more restrictive than the standards set forth in Went For It would not only be recommended, but constitutional. In addition, it is my opinion that the restrictions should be at least as restrictive as those in Shapero. Even though the restrictions were held as unconstitutional in Shapero, lawyer blogs are more intrusive on a potential clients’ privacy.

[1] 518 U.S. 618 (1995).

Tuesday, February 22, 2011

Google=a trial lawyer's new second chair

Thus is not directly related to the issue of social media, but this does present the very point to which this blog speaks. Technology has changed the way we practice law. Instead of pretending that the practice of law is, in 2011, what it was in the days that the Rules of Professional Conduct were created, we must embrace the new era.

Monday, February 21, 2011

Social media =/=In person contact

I found Nicole Black’s response to the September paper on Ethics 20/20 to be intriguing. Her thesis to the September paper focuses on the fact that “[o]nline interaction simply is an extension of offline interaction. It does not, by virtue of its unique format, merit a separate category requiring additional, more stringent oversight. ” [1]

I believe this characterization of social media drastically oversimplifies the medium. As I have discussed previously, at length, the differences between blogging and face-to-face interaction are numerous. The largest difference is this: face-to-face, it is significantly more difficult for a person to pretend to be someone they are not.

Let’s take the following example: A male lawyer enters an accident victim’s hospital room. He is middle-aged and disheveled-looking. He tells the woman he can represent her in a lawsuit against the driver of the other car. The accident victim takes one look at lawyer and realizes that he can’t be trusted. The accident victim tells the lawyer to leave her room.

Now take this same example, but over the internet: A lawyer links an accident victim to his blog via facebook. The lawyer pays for services on facebook that allows his blog address to show up on the sidebar of anyone who mentions car accidents on their facebook. The woman clicks the link, and is lead to the same lawyer’s page as example #1. The picture on the blog contains one taken of the lawyer from 15 years ago, wearing a fresh-pressed suit, with a fresh haircut. The woman decides this is a man she can trust to represent her.

While there is little that can be done with respect to how images are perceived over the internet, the fact is that, arguably, the woman may have felt more coerced after being contacted over the internet than she was when the lawyer came to visit her face to face.

Not only is there an issue over the appearance of the attorney, there is also the issue of a perceived feeling of safety while on the internet. Due to the perceived anonymity, people feel as though they can be genuine on the internet; therefore, they feel that others are also being genuine. This is obviously a fallacy on both counts; however, it may result in greater use of coercion over the internet than would have otherwise existed in person.

Therefore, I would conclude that, while the actual degree of the new rules is still somewhat uncertain. However, one conclusion is certain: the current ABA rules do not adequately address lawyers’ use of social media. It follows that the rules need to be amended, or new rules must be created to meet the growing need for such regulations.

[1]COMMENTS, Technology Working Group Issues Papers, “Client Confidentiality and Lawyers’ Use of Technology” & “Lawyers’ Use of Internet Based Client Development Tools” , Nicole L. Black, p. 10-11

Thursday, February 17, 2011

ABA publishes response to September paper of Ethics 20/20

I will be discussing specific pieces in later posts, but for those that are interested for examining the work in full, the ABA has posted the response to the September paper on Ethics 20/20.

Wednesday, February 16, 2011

Lawyer blogs: Man in suit on doorstep or flyer in mailbox?

This post discussed the seminal attorney-advertising case, Bates v. State Bar of Arizona. The year after Bates v. State Bar of Arizona [1], the Court took up the issue of attorney speech once again, in Ohralik v. Ohio State Bar. [2] Ohralik dealt with an attorney who personally visited the home of an accident victim, after learning that an automobile accident had occurred. In affirming the Ohio Supreme Court’s ruling, the United States Supreme Court held that in person solicitation of legal services can be constitutionally banned by the state.

The Court stated that in-person solicitation by a lawyer who is seeking employment is a “business transaction in which speech is an essential but subordinate component.” Furthermore, it stated that commercial speech is afforded limited protection with regard to the First Amendment. The court listed two interests of the state: (1) protection of consumers and (2) protection of the professionalism of the legal career.

It reasoned that, first, regarding the protection of consumers, the interest of the state is strong because lawyers act in a government function as “officers of the courts.” Furthermore, the court discussed that while lawyers are self-employed business men, they are also “trusted agents of their clients, and as assistants to the court in search of a just solution to disputes.” Next, regarding the issue of professionalism, the court reasoned that the “evils of solicitation” are especially strong in the context of in-person solicitation.

Ten years later, the United States Supreme Court took a step back from Ohralik when it decided Shapero v. Kentucky Bar Ass’n. [3] In Shapero, petitioner sent a letter to the Kentucky Bar Association for approval, which he planned to send to potential clients who have had foreclosure suits filed against them.

In holding the banning of the letter as unconstitutional under the First Amendment, the court stated that the “relevant inquiry is not whether there exist potential clients whose ‘condition’ makes them more susceptible to undue influence, but whether the mode of communication poses a serious danger that lawyers will exploit any such susceptibility.” The Court also stated that “[o]ur recent decisions have been grounded in the faith that the free flow of commercial information is valuable enough to justify imposing on would-be regulators the cost of distinguishing the truthful from the false, the helpful from the misleading, and the harmless from the harmful.”

Comparing this case to Ohralik, the court reasoned that targeted direct-mail poses “much less risk of overreaching or undue influence” than in-person solicitation. The court went on to say that in-person contact, unlike direct mail, involved the “coercive force of personal presence of a trained advocate.” In short, the person, when presented face-to-face with a proposition by an attorney, feels added pressure to give the attorney a yes or no answer regarding inquiries. With regard to the direct mail at issue in this case, the court noted that mail is something that can be easily put in a drawer and ignored; in person solicitation is not. Furthermore, the court reasoned that, unlike in person solicitation, direct mail can be easily regulated due to the fact that a permanent record of the advertisement exists.

Before discussing the most recent Supreme Court holdings on this matter, a preliminary issue exists with regard to the topic of lawyer blogging. Before it can even be decided whether lawyer blogging can be regulated, and how lawyer blogging can be regulated, we must discuss what lawyer blogging is. Once we are able to answer what category blogging fits into, it will be easier to discern whether the court should treat blogs more like Ohralik or Shapero.

Therefore, the narrow question is this: is blogging more like in-person solicitation or more like direct mail? My argument would be that is a hybrid of both.

First, regarding in-person solicitation, unlike a face-to-face conversation, the interaction between the attorney and client takes place behind the computer screen, and, perhaps, in each persons’ respective homes. Therefore, the client or potential is “protected” from any on-the-spot coercion that may take place when faced with a live person. In addition, unlike a live person, who a potential client may not intend to interact with, many lawyer blogs are only reached when the client voluntarily decides to “visit” the site. There is danger, however, where lawyers solicit their blogs on areas such as facebook; a client may click on a link for the lawyer blog without realizing what they have just clicked on. This interaction may be akin to being confronted by a lawyer face-to-face.

In addition, the argument could be made that, while the coercion may be absent, there is a serious invasion of privacy into a potential client’s home when a lawyer has the ability to “reach out” to potential clients over the internet. Because the potential client is most likely in their home, and potentially relaxing on the couch, or even in bed, there is a serious concern that lawyers could actually become more coercive because the potential clients feel relaxed and at ease. Furthermore, the court may be concerned with the ability of lawyers to invade even the most private areas of potential client’s lives: their homes. Therefore, even though blogging is not as coercive as face-to-face contact, the privacy concerns are an issue that the court may need to address in the future.

Next, regarding direct mail, blogging is, arguably, less intrusive than direct mail. Unlike direct mail, a potential client would most likely seek out a lawyer blog. The court discusses in Shapero the idea that a potential client can just choose to throw away a piece of mail they do not wish to look at. This same idea rings true of blogs: if a potential client doesn’t want to look at it, they can just not visit the site. The link that might be sent to a potential client might be similar to a piece of mail being sent to a potential client.

Also, like direct mail, blogs can easily be regulated. As discussed in previous posts of this blog, internet web addresses are tracked via IP addresses. Furthermore, visit to a particular site can be tracked via various programs. For example, has a feature that allows the user to examine who has viewed the site, and from which source. It follows that the State Bar can easily regulate lawyer blogs by requiring lawyers to submit the web address of their blogs, just as the state bar allows the lawyer to submit potential advertisements for approval.

As a result, blogs fit squarely between in-person solicitation described in Ohralik, and direct mail, as described in Shapero. This blog will discuss in further detail, in a later blog, where blogs fit into the current jurisprudence of First Amendment lawyer speech. It is clear that lawyer blogs can not categorically fit squarely into in-person solicitation or direct mail.

[1] 433 U.S. 350 (1977).
[2] 436 U.S. 447 (1978).
[3] 486 U.S. 466 (1988).

Tuesday, February 15, 2011

Non-lawyer assistant blogging: Do we care?

Recall my discussion on this blog about anonymous blogging. Legal Blog Watch addresses the issues of non-lawyers blogging anonymously. Why do we care about this? Model Rule 5.3 governs the responsibilities of Firms to regulate the conduct of their non-lawyer assistants.

Model Rule 5.3 states:

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

It is clear that, under this rule, if the lawyer either knows about the anonymous blog* and ratifies it, or is a partner or manager of the non-lawyer, and knows about the anonymous blog, that the lawyer may also be responsible for the non-lawyer's conduct on the anonymous blog.

While this issue does not directly address the issue of lawyer blogging, it still implicates concerns regarding the potential ethical violations for the use of social media. Therefore, lawyers who have concern for the violation of ethical rules should not delegate this responsibility to their assistants unless the lawyer ensures that these assistants also uphold the rules of professional conduct.

Furthermore, lawyers who work in firms should be concerned about potential blogging of non-lawyer assistants. While the rule requires the lawyer to know about the blog, it would be prudent for lawyers to take active steps to ensure that their assistants are aware that their duty to uphold the Rules of Professional Conduct also applies to blogs, albeit anonymous ones.

*Assuming the anonymous blog otherwise violates Rules of Professional conduct

Monday, February 14, 2011

Use of social media considered waiver of attorney-client privilege in California court

Even though this case does not directly address the the Model Rules of Professional Conduct, it presents issues regarding attorney-client privilege. Based upon the way the court ruled in California, this may point to how the court might view blogging and attorney ethics.

Sunday, February 13, 2011

Resource for blogging lawyers

This book promises to provide "[a] comprehensive look at how social media are affecting the legal system." Furthermore, it examines the many ways that an attorney can use social networking to his benefit.

Taken from the publishers website: "The author illustrates how the pervasive social networking phenomenon is redefining traditional notions of jurisdiction, duty, service of process, and legal ethics while using actual trial- and appellate-level cases to analyze the discoverability and admissibility of social media evidence."

Saturday, February 12, 2011

Top 5 ethical considerations for blogging lawyers

The Top 5 ethical considerations for lawyers who use social media provides lawyers with simple, easy to use list regarding tips that blogging lawyers should remember.

In sum, here are the top 5 rules:
1. Social Media Use is Governed by Advertising Regulations
2. Beware of Unauthorized Practice of Law
3. Location-based Services Could Violate Client Confidentiality
4. Social Media Use in Case Investigations
5. You Read Contracts — Are You Reading Your Terms of Service?

Friday, February 11, 2011

Tip for social media savvy lawyers: When in doubt, leave it out

I found Nicole Black's article on social media tips for lawyers to be interesting. The article outlines five tips for lawyers using social media.

Here are the five tips:
1. Social media is useless without goals
2. Different social media sites serve different purposes
3. ‘Social media’ is a misnomer
4. People want to hire other people, not businesses
5. Lawyers cannot afford to be left out of the loop

Conspicuously absent from this list: ETHICS ETHICS ETHICS! If I were creating this list, the number one tip would be as follows: You do not check your ethical duties at the internet gate. I also browsed her book for the purposes of this blog. The book has one small chapter on ethics, but directs lawyers to check with their local bar association. To me, this is reflective of the growing concern that no one is really sure how to handle the internet. The local bar rules are only marginally helpful, and, according to Ms. Black and countless others, it is not only helpful, but almost necessary for lawyers to be socially network savvy if they ever plan on making any money in the legal field.

Therefore, until the House of Delegates and/or the United States Supreme Court determine the exact boundaries of lawyer ethics on the internet, the number one tip for social media using lawyer is: When in doubt, leave it out.

Thursday, February 10, 2011

Anonymous blogging might still get you disbarred

This is something to think about, while blog readers anxiously await return to the discussion of whether blogs used as advertising can be constitutionally regulated.

How does this relate to blogging? With my lawyer blogging glasses on, I see serious issues in the future in the realm of anonymous lawyer blogs. These types of blogs are blogs that the blogger does not reveal their real name or identity. The blogger may reveal the city they are in, but all other information is either changed or kept private. The reason behind anonymous blogging is obvious for a lawyer: lawyers are under strict scrutiny by their respective state bar associations. If they blog anonymously, they can reveal information they would otherwise never be able to let leave the confines of the law firm.

Here is an example of such a blog. A quick read of this blog shows the crux of the reason behind remaining anonymous: the ability to share client confidences. If this blog were not anonymous, it would raise serious questions under Model Rule 1.6 . Professional Responsibility 101 is that you don't share client confidences. Even lay people, who have never sat in on a law school PR class can tell you this rule. So what makes this blogger safe from this rule? Anonymity.

So what would happen if the identity of such a blogger was no longer anonymous? At the very core of this article is the fact that sites like google have the capability of telling everyone on the world wide web exactly who you are, through the ISP address. In the Google case, people (such as attorneys and clients) believed they were protected behind their computer screens, but that was not the case. Even if those that were harmed were later compensated, what would happen to someone who violated an ABA rule? If an attorney divulges client confidences, even in an anoymous setting, it would be difficult to argue that the attorney was not violating the rule. The "I thought I was invisible" argument would be too little too late.

Lastly, this comment by the CEO of Google struck me, and, in my mind, is something that needs to be remembered, practiced, and recited by attorneys: If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.

Wednesday, February 9, 2011

Social media sending the legal profession back to the future?

This blog presents an interesting thesis: that social media actually brings lawyers back to their "roots" of being required to advertise through word of mouth.

Is this really the case? Isn't social media alot more than that?  Rather than just putting out a word of mouth, isn't social media transcending into the print media realm? Thus triggering constrictions that, pre-Bates, would have made the use of social media just as unethical as a newspaper ad?

Tuesday, February 8, 2011

Bates fears realized in the lawyer blogging context

In this post I discussed how that, undoubtedly, some lawyer blogs would fit the definition of advertising according to the vision of the ABA when the Model Rules were written. Therefore the question remains: how should the ABA regulate lawyer blogging? Furthermore, is it constitutional for the ABA to do so?

The First Amendment of the United States Constitution states:
“Congress shall make no law. . .abridging the freedom of speech, or of the press. . .”
The Court has held that the First Amendment applies to the states through the Fourteenth Amendment.

Bates v. State Bar of Arizona [1] is the seminal case with respect to attorney advertising and the First Amendment. In Bates, the attorneys of a legal clinic placed an advertisement in the local newspaper. This ad stated that the clinic was offering “legal services at very reasonable fees.” The United State Supreme Court ultimately held that truthful advertising of routine legal services could not be constitutionally banned as a matter of law. The Court addressed six government interests that are protected in banning attorney advertising:

1. The adverse effect on professionalism
2. The inherently misleading nature of attorney advertising
3. The adverse effect on the administration of justice
4. The undesirable economic effects of advertising
5. The adverse effect on advertising on the quality of service
6. The difficulties of enforcement

In weighing these interests against the interest of the attorney, the Court held that interests of the attorney’s rights under the Free Speech clause of the First Amendment outweighed the government’s interests.  With respect to blogging, before addressing further United States Supreme Court jurisprudence, we must discuss whether these same interests are at stake for the government with respect to blogging.

1. The adverse effect on professionalism
Blogs are different than other mediums, as they reach a wide range of people and can be as permanent or temporary as the blogger wishes. A person can create a blog various ways, ranging from purchasing a domain name to using a free service such as Furthermore, the possibilities for the blog’s design and content are endless, as long as the user follows the terms of the user agreement. I believe that professionalism is a genuine concern in the “blogosphere.” I will continue to address this issue throughout the blog, but it is relevant that a blog is a different medium than a newspaper, online website, or even a magazine advertisement. The customizability of blogs makes the potential for a lawyer to display a lack of professionalism on a blog that would not fit in any other medium. A lawyer can use colorful font, background images, and fun graphics on a blog, just as a lawyer website. However, the difference is that a blog can be updated as much or as little as the lawyer wishes. Furthermore, the ‘comment’ feature on blogs (which can be turned on and off and customized upon the user’s request) makes the blog akin to a live chat. The concerns mentioned in Bates, therefore, are becoming realized in the lawyer-blog setting.

2. The inherently misleading nature of attorney advertising
Blogs have the ability to be misleading in the same way that attorney websites have the ability to be misleading. There are never-ending possibilities on how a blog could potentially be misleading, but the main concern is that any person can make a blog. Furthermore, any person can claim to be a lawyer and give advice to people who may be desperate to receive help. This is also a serious issue in the context of blog comments. In the current age, a lawyer blogger may write a blog post, and receive comments from potential clients. If the lawyer blogger does not have the appropriate warnings on their site (an example of this is in this post ), a potential client may think that they have received legal advice, and may rely on such legal advice. (triggering Model Rule 1.18 ). Another possibility is that a lawyer may indicate that he specializes in a particular area, triggering Model Rule 7.4. In sum, this concern is one that continues to be prevalent in the context of blogging, and I would suggest that new rules need to be created to address it.

3. The adverse effect on the administration of justice
These issues will be addressed later in greater detail, but fear became realized for Kristine Peshek and Sean Conway , both of whom were reprimanded for blogging.

4. The undesirable economic effects of advertising
As discussed above, blogs are easily created and updated. Unlike an attorney website, newspaper ad, and the like, an attorney is not even required to pay to blog; blogging can be done for free. Therefore, the use of blogs as advertising have, arguably, saturated the advertising world. One could argue that there is no longer any competition for attorneys due to the fact that attorney advertising in the form of lawyer blogging is readily available.

5. The adverse effect on advertising on the quality of service
Due to their malleable nature of blogs, there is potential for lawyers to provide a lower quality service than if they took the time to place an ad in a newspaper. No thought is required to post a blog. With several clicks, an attorney could create an attorney-client relationship and complete that relationship once they have provided the advice. This advice may not be as researched as it might have been had the attorney met with the client in person. However, I would argue that attorney blogging provides a higher level of service due to the fact that the client has the ability to more adequately research their attorney before contacting them. Therefore, the client can become choosier. In turn, attorneys feel increasingly exposed over the internet; therefore, there is more pressure to provide quality service.

6. The difficulties of enforcement
This is one concern that is lower with lawyer blogging than with other areas of advertising. With blogging, the House of Delegates (ABA) could create a staff to regulate lawyer blogging. The only concern is that the lawyer would make the blog private to some but not others. However, if this is the case, it is unlikely that the attorney is using the blog as advertising anyways; in which case regulation may neither be required nor constitutional. The issue of the regulation of blogs which are not advertising will be addressed later. Needless to say, public blogs may be easily regulated due to their extremely public nature.

As this post demonstrates, overall, the concerns addressed in Bates (and subsequently dismissed in favor of attorney protection under the First Amendment), are still prevalent. The issue, therefore, is whether blogging deserves the same protection that the Supreme Court has determined that is required under Bates. I would suggest that a lower level of protection is required for lawyer blogs that clearly fit in the description of advertising. This issue will be addressed in turn.

[1] 433 U.S. 350 (1977).

Monday, February 7, 2011

Model Rule 7.4 and how meta tags can get you disbarred

This blog presents an interesting issue that most would not even consider: meta tags.

As the attorney blogger explains, “Meta tags are words and phrases built into the website but only visible when you switch from the normal page view to a reveal codes type of view that gives you a behind-the-scenes look at the page.”

Model Rule 7.4 prohibits the use of the word “specialize” unless “the lawyer has been certified as a specialist by an organization that has been approved by the ABA.”

How this fits in the context of blogging: By a strict reading of this rule, if a lawyer uses a meta tag such as the word “specialize,” they have breached the code of ethics unless they can show that they were “certified as a specialist by an organization that has been approved by the ABA.”

Is this really what the ABA intended when it wrote Rule 7.4? This problem shows that, unquestionably, the Model Rules as they currently stand are not equipped to handle the countless issues that may arise regarding the use of lawyers and blogging.

Sunday, February 6, 2011

ABA opinion on lawyer websites and its connection to blogging

The Standing Committee on Ethics and Professional Responsibility of the ABA has published a formal opinion, which provides guidance to lawyers who use websites to advertise.

The relevant portions of this opinion are summarized as follows:

1. Information about lawyers, their firm, or their clients: Lawyer websites are considered “a communication about the lawyer or lawyer’s services.” Therefore, lawyer websites are subject to Model Rule 7.1, 8.4(c), and 4.1(a), together of which can be interpreted to mean that no websites may be false or misleading.

2. Information about the law: Lawyers may offer accurate legal information that does not mislead reasonable readers. This information must be accurate and current, and thus must conform to Model Rule 7.1, 8.4(c), and 4.1(a).

3. Website visitor inquiries: These inquiries must conform to Model Rule 1.18 , which imposes a duty to the lawyer when approached by a prospective client. A prospective client is defined as “a person who discusses with a lawyer the possibility of forming a client-lawyer relationship.” The opinion focuses on the specific issues of email and prospective clients, and urges lawyers to make sure that special attention is paid to the fact that a lawyer-client relationship may be formed via a website inquiry.

4. Warnings or cautionary statements intended to limit, caution, or disclaim a lawyer’s obligations to website visitors: Statements on the lawyer websites clarifying any misunderstandings between the lawyer and potential client may be helpful to avoid the creation of a lawyer-client relationship as well as to avoid the issue of reliance on advice that a potential client may receive.

While this opinion does not outright address the issue of blogging, as this post addressed, lawyer blogs in, at least some situations, are undoubtedly advertising. Therefore, where the blog is classified under the advertising umbrella, I believe that these rules provide valuable guidance for blogging lawyers. Even though, at times, the rules may not fit exactly under the blog umbrella, I would suggest that lawyers be “better safe than sorry.” Put another way, when i doubt, lawyers should err on the side of caution until the ABA adequately addresses the issue of blogging.

Saturday, February 5, 2011

Lawyers "fibs" on social media may be subject to scrutiny

How are "fibs" on social media regulated by the ABA?

This paragraph struck me:
In everyday marketing, it’s a practice often seen as a harmless fib. But for those who practice law, the behavior could be frowned upon by a disciplinary authority, according to panelist Bradley Shear, a Bethesda, Md., attorney.

This issue is at the very core of the debate currently being conducted by the ABA on how exactly social media, such as blogs, should be regulated.

Friday, February 4, 2011

Non-advertising lawyer blogs "falling through the cracks" of attorney regulation?

Random House Dictionary defines a blog as “a web site containing the writer's or group of writers' own experiences, observations, opinions, etc., and often having images and links to other Web sites.” This definition, while not incorrect, may not completely encompass what a blog truly is. Many lawyers now use blogs to not only share their experiences with their readers, but also to market themselves. The usage of blogs and the internet in this manner has sparked concern from the ABA regarding the ethical implications surrounding

One of the questions posed by the September Paper released by the ABA Commission on Ethics 20/20 (discussed here was the following:

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?

If a blog is unquestionably advertising, then the issue becomes whether the ABA can constitutionally regulate lawyer blogging under the First Amendment. If a blog is not advertising, then the issue is whether the lawyer is subject to other Rules of Professional Conduct, and if so, whether these rules are constitutional under the First Amendment.

The first underlying issue of this question is how the ABA should categorize blogs. Are they advertising? Or are blogs something else? Should blogs that are not advertising not be treated as such? Or should all blogs be categorized as advertising irrespective of whether there is a proposed commercial transaction inherent in the blog?

Thus, the first question we must ask to adequately answer the ABA’s question is whether blogs are advertising, is whether the ABA contemplated mediums such as blogs when it wrote the most current version of the Model Rules of Professional Conduct.

Model Rule 7.2 is the main rule that addresses the issue of advertising. This rule states:

(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media. (emphasis added).
(b) A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may
• (1) pay the reasonable costs of advertisements or communications permitted by this Rule;
(2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority;
(3) pay for a law practice in accordance with Rule 1.17; and
(4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if
(i) the reciprocal referral agreement is not exclusive, and
(ii) the client is informed of the existence and nature of the agreement.
(c) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content.

Prior to 2002, 7.2(a) said the following:
(a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor advertising, radio or television, or through written or recorded communication.

The ABA House of Delegates Explanatory report indicated that the changes were required to “obviate the necessity of changing the rule to accommodate the next new public-communication technology.” Therefore, there is a strong argument that the 2002 amendment to the rules was intended to broaden the definition of advertising from just print media to other source such as the internet.

Comment 1 to Model Rule 7.2 indicates:
[A]dvertising involves an active quest for clients, contrary to the tradition that a lawyer should not seek clientele.
Therefore, piecing all of these elements together, we can understand the ABA’s definition of advertising to include electronic communications (including public media) that involve the active quest for clients. This definition resolves the issue that certainly some blogs should be classified as advertising. However, can the ABA really assume that just because the lawyer has a blog, and allows the blog to be public that the lawyer is engaged in the “active quest for clients”?

The best way to answer this question is to examine some lawyer blogs. (sometimes called “blawgs”).

Michigan Auto Lawyers Blog, boasts, on the headline that it provides “News, tips, and help for auto accident victims and drivers in Michigan.” This presents several issues outside of the context of advertising (such as Model Rule 1.18, duty to prospective clients). For now, however, the discussion will only reach the confines of advertising. In this headline, the word “help” can be easily understood to mean that this lawyer is on the quest for clients. To help someone implies that a service will be done; and to provide legal services for someone, even if it is for no fee, would still make that person your client.

IP Litigation Blog focuses on current issues in Intellectual Property law. From the outset, this blog appears to be geared towards the legal community, as it discusses the nuts and bolts of intellectual property. This blog, thus, may potentially fall into the realm of the blogging-to-network crowd. The “about” section focuses on Mr. Mann’s legal career, and accomplishments, and does not provide any specific language that is geared towards seeking potential clients.

However, the “contact” section struck me. Here, the blog provides a mailing address, telephone number, and email address. It also provides a fill-in-form where a person can send an email directly through the blog. A disclaimer above the fill-in-form contains the following:
All inquiries will not be treated as confidential or privileged, and any email communications may be disclosed to other persons without regard to confidentiality considerations. If you must send us confidential or proprietary information please clearly indicate so and we will make every effort to treat it that way.
Doesn’t this suggest that, if you are a person who wants to contact Mr. Mann regarding an intellectual property issue, he will assist you in keeping your information confidential under Model Rule 1.6 (Client Confidences)? This blog, therefore, could be seen as an all-encompassing, throw-it-at-the-wall-and-see-what-sticks blog.

The Prime Time Crime Review is a blog written by a Federal Sex Crimes Prosecutor. The title says “An insider’s glimpse into the truth, the whole truth, and other stuff.” This blog focuses on the television show “Law and Order: Special Victim’s Unit,” and whether the television show accurately portays the state of the law. Ms. Leotta “grades” each episode for its accuracy. The interesting aspect of this blog is that, to find out how to contact Ms. Leotta, it is necessary to click on the top header, which leads the reader to her website. At the website, a person can purchase the book that Ms. Leotta has written. Because she is a federal prosecutor, she does not appear to be soliciting clients; rather, she appears to be soliciting readers for her book.

As I have shown with a short review of the above blogs, the line between defining blogs as advertising and as some other medium is very blurry. By the review of the history, comments, and the rule itself, it is clear to me that the ABA intended to, at a minimum, include lawyer blogs who actively seek clients as advertising. By concern is that those lawyer blogs which do not actively solicit clients might be unnecessarily regulated by the ABA by “falling through the cracks” of the rule. This regulation will result in an unconstitutional chilling of lawyer speech. This is an important and controversial question for lawyers, especially those (such as myself) who are just entering the legal community.

Thursday, February 3, 2011

Wednesday, February 2, 2011

Philadelphia Bar Committee defines "real-time electronic communication" in Rule 7.3(a)

In August 2010, The Philadelphia Bar addressed social media concerns .

In its June 2010 opinion, it addressed the meaning of Pennsylvania Rule of Professional Conduct 7.3(a), which limits the lawyer's ability to conduct in-person solicitations. The committee clarified that "real-time electronic communications" in the rule should be understood to mean "electronic modes of communication used in a way in which it would be socially awkward or difficult for a recipient of a lawyer's overtures to not respond in real-time." The committee then compared its meaning of "real-time electronic communications" to that which was addressed in Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988).

Therefore, the committee made it clear that the only type of lawyer communication that is restricted under Rule 7.3(a) is that which is akin to a face-to-face communication. Therefore, the committee concluded that lawyer blogs do not fit under its definition of "real-time electronic communication," because “[e]veryone realizes that, liked targeted mail. . . blogs can be readily ignored, or not, as the recipient wishes.” (The committee recommended, however, that lawyer bloggers retain their blog posts for two years in accordance with Rule 7.3(b)).

Is this really true though? While blogs are a medium that, in general, a person makes the conscious choice to visit, is it really the same as direct mail?

Once a person makes the choice to access the blog, often they can make comments and read comments. Are comments not akin to having a real-time conversation with the blogger? Even if the person enters the blog site intentionally, and chooses to comment, couldn’t potential further comments made by the blogger to the person be considered in-person communication? I think it might. In which case, the committee’s answer to the question on whether blogs are that blogs real-time electronic communication may be too general. I contend that a more in-depth analysis is required.

Tuesday, February 1, 2011

Building a lawyer brand: Ethical?

I found this entry in this blog to be intriguing.

First of all, Adrian Dayton states the objectives to his blog on the front page as the following:

--Build their brand online
--Develop thought leadership and
--Rise to the top of search results.

So essentially, this blog is a blog that tells lawyers how to blog to build their "brand" as a lawyer.

Doesn't a site like this build a compelling case for the ABA that blogging is advertising? And thus, if it is advertising, that blogs are afforded a lower level of First Amendment speech? This site is putting it out there, for all to see, that the reason attorneys blog (or why they should blog) is to, essentially, make more money as an attorney. (my 2.5 years' of legal studies thus far has read right through the "rise to the top of search results" to mean you will make a whole ton of money if you follow what this site tells you).

Let's think about this logic: Attorneys should blog because it builds their brand. Their brand is the "service" of law that they provide. But aren't the very people that the attorneys are attemping to target going to see right through their marketing tactics? Especially since a site such as this exists? Doesn't this take two steps back from the portrait of professionalism that the ABA has attempted to craft for so many years? And if this is, indeed true, then what is next?

More on this to come.