For many lawyers, blogs have become a popular marketing tool to catapult their firms’ names into the World Wide Web. For others, they have become a convenient mechanism for discussing an array of topics from feminism to federalism.
And while many blogs lie somewhere between unabashed advertising and pure political speech, the amorphous quality of these online logs are creating uneasiness about their ethical implications.
“It all involves speech, but the distinctions are not clear,” said Larry Ribstein, a professor at the University of Illinois College of Law who authors Ideoblog on the Internet.
Many states are in the process of revamping their attorney ethics rules, and part of that process involves the prickly issue of whether blogs should be regulated as advertising.
On the one hand, states want to protect consumers from unscrupulous lawyer advertising presented under the guise of an online diary. On the other hand, they want to preserve the free flow of ideas-and valuable legal information presented in a public forum-that the new technology has fostered.
Ribstein, a corporate and constitutional law professor, maintains that whether blog content is deemed advertising or fully protected political speech is an issue that could become the quintessential test of the bounds of commercial speech doctrine.
“It doesn’t get any hazier than blogs,” he said.
The proliferation of blogs-short for Web logs-has exploded in the last two years. In general, they are logged, online postings written by lawyers discussing current rulings, political events or media coverage related to a particular area of the law. They usually encourage readers to weigh in on topics and post their entries as well.
Many blogs, however, are more personal in nature and include observations on a vast number of topics. Still others are focused on marketing and maintained with the intent of attracting clients but may be informational nonetheless.
Developed at first primarily by small-firm practitioners and legal scholars, blogs have caught on among larger law firms, some of which, on their Web sites, link to blogs authored and edited by their individual practitioners.
A few of the bigger firms with lawyers who write blogs include Akin Gump Strauss Hauer & Feld; Cooley Godward Kronish in Palo Alto, Calif.; Preston Gates & Ellis and Davis Wright Tremaine of Seattle; The Cochran Firm; and McKenna Long & Aldridge. Subjects can include such practice areas as electronic discovery, bankruptcy and personal injury.
In addition, the blog myhq.com lists hundreds of law blogs maintained by lawyers and scholars and allows bloggers to add their sites to its “blog roll.” Some of the blogs on the list are Blonde Justice, China Law Prof Blog, Dark Goddess of Replevin Speaks, Election Law Blog, Antitrust Review and Mommy Blawg.
All that blogging has raised questions about whether ethics rules are in sync with the technology.
“Nobody’s perfected the rules as they relate to advertising because the arena keeps changing,” said Micah Buchdahl, an attorney and law firm marketing consultant in Moorestown, Pa. “Nobody’s even close.”
States look at rules
But some states are trying. New York is reviewing its lawyer advertising rules, and some of the proposed changes are making bloggers nervous. In trying to formulate rules to encompass everything from print ads to Internet pop-ups, a group of presiding justices last spring broadened its rules on lawyer advertising. The state has delayed implementation of any changes until after a comment period, which was extended last month. The changes would pertain not only to New York firms, but, significantly, to out-of-state attorneys advertising in New York.
Part of the concern is that the proposals pertain to “written advertisements and solicitations and computer-accessed communications.” Such a definition, say some observers, could include blogs. If so, the rules, which propose, for example, a requirement that law firms file their advertisements with a disciplinary committee for public view and scrutiny, could stifle blog dialogue.
“They border on ridiculous,” Buchdahl said.
Other states are mulling revisions as well. The State Bar of California is considering changes to several of its ethics rules, including those pertaining to advertising. A spokesman for the association said that while the organization has not specifically addressed blogs in its discussions, they are part of a larger consideration regarding online advertising.
In addition, Indiana and Rhode Island are considering amendments, and Missouri and Texas recently updated their rules with regard to advertising.
Ethics opinions written by state ethics officials could shed some light on the issue, but an opinion specifically addressing blogs has yet to surface, said Buchdahl, who has been watching for a blog-focused opinion.
So for now, some attorneys are taking a better-safe-than-sorry approach. Wilson Sonsini Goodrich & Rosati partner Catherine Kirkman publishes the Silicon Valley Media Law blog, which is referenced in her biography on the firm’s Web site. The blog covers recent decisions pertaining to media law and includes resources and observations about the practice area.
Kirkman sees her blog as a means of publication rather than advertising.
“I really haven’t looked at it through that lens,” she said. “It’s a way to participate in the community and be a resource in terms of analyzing cases.”
Even so, her blog, which states that she is an attorney with Palo Alto, Calif.-based Wilson Sonsini, includes a lengthy disclaimer, which says, among other things, that it is not intended as advertising and that it does not represent the views of her firm.
Kevin O’Keefe, president of LexBlog Inc. a consultancy in Bainbridge Island, Wash., that helps lawyers develop blogs, said that he advises attorney bloggers to include a disclaimer identifying the blog’s purpose and basic content. “If I’m a lawyer putting something up on the Internet, and I have contact information and brief information of what I do, someone could make a compelling argument that I’m putting information on there as a way to market my practice,” O’Keefe said.
Wary of mindset
But stating that a blog is not advertising might not make a difference in determining whether states can regulate them as commercial speech, noted Ribstein, of the University of Illinois.
And at least one blogger wants no part of the disclaimer technique, which could prove a huge burden with respect to online discussions between blog participants.
“I don’t want to put any disclaimers on my blog,” said Ernest Svenson, a blogger better know as Ernie the Attorney. “It’s a buy-in to a mindset that I want to go away.” Too many disclaimers and warnings create a cry-wolf situation, he said, and dilutes those messages that rightfully should protect consumers.
He added that blogs have become a way to enhance the credibility of lawyers, one of the purposes of advertising restrictions.
“We should market ourselves in a way that does not demean the profession. Most bloggers are going in that direction,” he said.