Sunday, December 4, 2011

The ethical pitfalls of lawyers blogging

This story from Above the Law warns that some state bar associations may equate law firm blogs with unethical advertising. 

Is Law Blogging Just Advertising? The Virginia Bar Thinks So.

On October 18, a disciplinary committee found that attorney Horace Hunter violated ethics rules by writing a regular blog about cases in which he was involved, without adding any disclaimer categorizing the writing as advertising.

Hunter blogs on his firm’s website. He claims the content is not advertising, and that he has a First Amendment right to post it without disclaimers.

The Washington Post explained the Bar’s position a few days before the decision came out:

One purpose of the Web site is to market the firm and attract business, so any discussion of Hunter’s cases is considered advertising and must include a disclaimer “that puts the case results in a context that is not misleading,” the charge said.

To me, this shows a serious misunderstanding of how the Internet works. Obviously any business operates a website so that people can find it easily — and hopefully take advantage of its services. Does this mean everything on your site is an advertisement? Not necessarily.

A quality website — whether it’s for an oil company, a law firm, or a rock band — is most effective when it provides useful information for potential customers. It’s not about hard selling. It’s about being genuinely helpful and endearing yourself to the marketplace. Above the Law columnist Brian Tannebaum wrote a good column yesterday about Twitter’s ability to do this.

The Virginia Bar seems to think all lawyers who blog are writing content akin to the BP ads after the Gulf oil spill. I guess I’m not that cynical. Besides, a normal person should be able to tell the difference between simple shilling and at least an attempt to be informative.

. . . .

In the Washington Post piece, attorney Brad Shear brought up the ol’ slippery slope argument against disallowing what are essentially marketing necessities at this point. If blogging isn’t necessary in and of itself, web-based marketing is a part of life, and the profession needs to embrace it, just like every other industry on the planet:

“If the Virginia Bar believes that blogs that discuss news and commentary should have stringent disclaimers that precede the content because they are deemed to be advertisements, then the Virginia Bar may have to require that every blog post, blog comments on other blogs and other user-generated content by an attorney to contain a strict disclaimer,” said Shear, who has no ties to the Hunter case. “It becomes a slippery slope.”

I can’t believe he actually said “slippery slope” — but the point rings true. Just because an attorney is writing about the law does not mean he’s writing an ad. He might be, but let’s not throw the baby out with the bath water, bury our heads in the sand, wear sunglasses at night, whatever.

Continue reading here.


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