For lawyers who love to write, keeping a legal blog is a terrific way to play around with ideas, explore the wrinkles and crevices in one’s chosen area of law, and engage with like-minded colleagues, regardless of geography. It also makes for better lawyers. The regular engagement with ideas and new developments necessary to maintain a blog ensures a high level of awareness of everything going on in one’s area of practice. Nonetheless, many attorneys hold off on blogging out of concern for legal issues that may arise.
1. Attorney advertising rules likely don’t apply to your blog. Regardless of the broad language your state bar rules use, they are constrained by the First Amendment. And under the First Amendment, those advertising rules can only apply to what’s known as "commercial speech." What’s "commercial speech"? It’s speech that has the primary purpose of proposing a commercial transaction. In other words, advertising. So unless you are using your blog to advertise your services, the Rules of Professional Conduct relating to advertising do not apply.
2. The fact you publicize your practice via blogging does not make it "advertising." It’s useful to think of legal blogging as akin to writing articles for legal publications: While there may be an underlying business development motive, such writing is not something that would be considered "commercial speech" subject to the attorney advertising sections of the Rules of Professional Conduct. Why? Because speech that involves mixed editorial and commercial purposes can only be "commercial speech" if 1) it is contained in an advertising format; 2) it involves references to a specific product; and c) the speaker has an underlying economic motive. All three elements must be met, and most blogs wouldn’t come close to meeting this test. What’s more, even if all three tests are met, a communication still won’t be deemed commercial speech if the editorial and commercial content are "inextricably intertwined." Blog posts exploring new items, various developments in an area of law or thoughts on the practice of law cannot run afoul of this test. (Dex Media v. City of Seattle, 696 F.3d 952 (9th Cir. 2012))
3. But this isn’t the case if you "blog" in name only. There’s been a blurring of the lines between blogs and websites, and just because something is called a "blog," or uses blogging software, doesn’t make it automatically exempt from consideration under the attorney advertising rules. Consider the case of Richmond, Va., attorney Horace Hunter: By writing posts that were almost uniformly about himself, his cases and what a wonderful lawyer he is, he essentially turned his blog into simply another marketing message on his website. In that case, what he called a "blog" crossed the line into advertising, and the Virginia Supreme Court determined that the advertising rules applied. (Hunter v. Virginia State Bar, 121472)
4. How to tell the difference. It shouldn’t be that hard, as a typical legal blog should contain little, if any, content that could be confused with a direct advertisement for an attorney’s services. A blog should be, at most, indirect evidence of an attorney’s competence, writing ability, mental fluidity and advocacy skills (or so one would hope). The Hunter case is a good example of the exception that proves the rule: the factors that drove a divided court to find that Hunter’s blog was advertising included: 1) most posts predominantly described cases where Hunter got a favorable result for a client; 2) most posts mentioned the name of Hunter’s law firm (as well as his own name); 3) Hunter’s blog was a page on his firm’s commercial website, rather than a standalone site; 4) the blog used the same "frame" as the website, which prominently features the name of the firm and a "contact us" form; and 5) the lack of ability for others to post comments on blog posts. Other than the location of the blog itself (as a subdirectory on a firm’s website versus a standalone URL), none of these factors should come into play in a proper legal blog.
5. Don’t blog about clients. If the Hunter case isn’t reason enough, consider that Hunter was also disciplined for writing about client cases. Hunter was able to get this discipline overturned on appeal, on the grounds that he was discussing matters that were both in the public record and for which he had client consent. While there may on rare occasions be circumstances where blogging about clients is appropriate, such cases should be few and far between. There is not only the potential to divulge information protected by attorney-client confidentiality, but there is also the message that writing about such matters sends to other clients. And don’t think that changing names and anonymizing certain details are proof against problems in this area: An Illinois attorney was recently disciplined for writing about clients despite doing just that. Bottom line: There’s plenty to write about without having to discuss your own clients.
6. Allow comments. Beside the fact that a lack of commenting is one of the factors the Virginia Supreme Court found indicative of whether a blog was commercial speech or not, commenting is also one of the best ways to engage with other bloggers and legal professionals in an attorney’s practice area. While some attorneys are concerned about the open (and sometimes woolly) nature of blog commenting, remember that you can moderate comments, not permit anonymity, or take any number of other steps to keep comments from getting out of control. It’s also critical to keep in mind that the operator of a blog cannot be held liable for statements posted by third parties in the comments. Under 47 U.S.C. §230, no user of an interactive service can be treated as the publisher or speaker of information provided by another user. This statute broadly pre-empts any state law that would otherwise hold a blogger liable for republishing allegedly defamatory statements via blog comments.
7. Anti-SLAPP laws are here to help. Some would-be bloggers are concerned that the subjects they choose to write about may expose them to defamation lawsuits from thin-skinned public officials, businesses or organization leaders. While there’s no question that the threat of SLAPP, or strategic lawsuits against public participation, suits, or suits designed to bully the target into keeping his or her mouth shut are a barrier to full and effective exercise of First Amendment rights, a growing number of jurisdictions are enacting anti-SLAPP laws. The best of these laws, including those found in California, Washington, Texas and Washington, D.C., allow the defendant targeted by a SLAPP to bring an immediate motion to strike the complaint. If the plaintiff can’t make a prima facie showing at that time, the complaint is dismissed and the defendant is awarded attorney fees (and in Washington, a mandatory $10,000 fine). Such laws provide a powerful disincentive to bring of meritless defamation cases.
8. Subpoenas seeking to "unmask." If your blog is popular or deals with contentious topics, you may find yourself facing a subpoena seeking the identity of an anonymous commenter (especially because under 47 USC §230 you cannot be sued for defamation over comments). While you probably won’t have this information, you will have an email and IP address for each commenter and that may lead to a commenter’s identity. Note, however, that there is a developing body of law that protects compelled identification of anonymous speakers. Under the so-called Dendrite test, the plaintiff must produce sufficient evidence to support each element of a cause of action (or overcome defenses) in order to make a prima facie case. Even if that can be done, the court will still balance the defendant’s First Amendment rights against the strength of the prima facie case presented and the need to identify the defendant in order for the case to proceed. Only then will discovery be compelled. Although Dendrite is New Jersey state case law, most states that have addressed this issue have come up with similar formulations (Dendrite v. Doe, 775 A.2d 756 (N.J. 2001)).
9. Jurisdiction is likely limited to your state. If you’re concerned that you may be exposed to defending defamation suits in any state across the country, you can rest (relatively) well assured that this is not the case. Most courts that have addressed the issue of personal jurisdiction for the purposes of Internet defamation have concluded that there has to be more of a connection than simply the fact a blogger has written about someone and happens to know which state they live in. Rather, the defendant must have some other connections, or have somehow "expressly aimed" the content at residents of the forum state.
10. Keep copyright in mind. There’s little to worry about when it comes to copyright, provided you take a few preventative measures. First is to not copy your blog posts from things written by others. Slightly lesser known is the idea that copying any old photo from the Internet for use on your blog isn’t OK under copyright. Yes, even if you provide attribution to the photographer. Luckily, it’s easy to use one’s own photos, or purchase inexpensive (sometimes free; often less than $1.50 per image) stock photography from Stock.XCHNG or iStockphoto. Finally, there’s the Digital Millennium Copyright Act, which provides a "safe harbor" from liability for a blogger who promptly removes copyrighted material posted by others upon receiving notice. The DMCA is a huge protection for a site like YouTube; for bloggers it really only comes into play with respect to comments. Still, if you want to take a buttoned-up approach, there is a compliance step that must be taken to ensure DMCA protection: You must register your "DMCA Agent" with the U.S. Copyright Office.
Josh King is vice president and general counsel of Avvo.com, the web’s largest expert-only legal Q&A platform, directory and marketplace.