Legal Ethics and Blogging

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By: Michelle A. Ross

The NY AILA Practice Management Committee is presenting its annual Continuing Legal Education program on Ethics next week on February 19th at New York Law School from 6:00 PM to 9:00 PM. To keep with this theme I thought I would post about a cutting edge ethical issue in the legal field, lawyers’ blogs or as the internet sometimes loves to call them “blawgs.”

A lawyer’s blog can be a powerful online presence which establishes that lawyer’s unique voice, builds the authority and credibility of the lawyer as a professional, provides valuable information to the public, and, yes, attracts potential clients.  The last point, is where the ethical issues seem to enter.

A January 14, 2014 Article in the New York Law Journal by Richard Rasyman and Peter Brown provides a nice summary of the ethical rules and recent cases concerning lawyers’ blogs from various jurisdictions including reference to New York developments such as New York State Bar Association Comm. on Professional Ethics, Op. 967 (N.Y. 2013). Found here. The committee found that a lawyer’s blog which focuses on work-life balance was not an advertisement and therefore was not subject to NY Rules of Professional Conduct Rule 7.1(k) which requires attorneys to retain copies of any contents of a website.

I am by no means the first to comment on this article, and I find myself agreeing with comments of others such as Kevin O’Keefe’s on “Real Lawyers Have Blogs”.  The Rasyman Brown article suggest that at the moment, ethics committees and state tribunals have been finding that much of the time blogs are not attorney advertising.  O’Keefe has compared good blogging to traditional networking because most blogs are musings on a current event or substantive topic without any solicitation beyond discussion of the topic. Great, ethical rules governing attorney advertising don’t apply!  Until they do apply of course.  In cases where tribunals have found an attorney’s blogging activity to be advertising the blogs read as promotional pages about the attorneys with information about their success in past cases and even a call to readers to contact them.  So at some point a blog can transform from an exercise of free speech to attorney advertising.

The question for practitioners operating under time constraints is, if I am going to dedicate precious time to blogging how is this going to help my practice grow?  If the goal is to network and generally promote a lawyer’s presence as a professional then I agree with many other commentators that this should not be considered attorney advertising.  For all practitioners this goal is a wonderful long term goal to have, but there is always that more pressing goal at hand- getting clients in the door.  It makes sense to me that before a lawyer creates a blog, she should make a conscious decision as to whether that blog is for the direct purpose of growing her client base or not. If it is, why not comply with the ethical rules governing attorney advertising from the very start?  It certainly wouldn’t hurt to keep records of posts, place the required disclaimers on her blog, and take all the other necessary steps to comply with advertising rules.  If that sounds like a burden then stay away from posts that sound like advertisement. So by all means jump in and join the discussion, but make the choice about how you want blog and why you want to blog before you make the leap

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