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 blogger.com. 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).

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