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.