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Ethics of Blogging for Lawyers

by Josh King

Avvo, Inc.


Josh King

General Counsel &

Vice President, Business Development

Avvo, Inc.

Twitter: @joshuamking

Email: [email protected]

Introduction


• The Blogging Landscape

• Blogs: “Attorney Advertising” Under the RPC?

• . . . or Expression Protected by the First Amendment?

• Defamation and Third-Party Comments

• Blogging About Clients

• Copyright Considerations

• Closing Thoughts

Overview

The Blogging Landscape





Legal Blogging Tips & Tricks

Consumption – Use A Reader

Tracking – Use Google Alerts

Finding Blogs to Read – Blogrolls

Blogging Platforms

RPC: Blogs as “Attorney Advertising”

“A lawyer shall not make

a false or misleading

communication about the

lawyer or the lawyer's

services.”

“A truthful statement

is also misleading . . . “

“. . . if there is a

substantial likelihood

that it will lead a

reasonable

person . . .”

“. . . to formulate a

specific conclusion

about the lawyer or

the lawyer's

services . . .”

“. . . for which there

is no reasonable

factual foundation.”

Types of RPC Restrictions

• Discussions of results obtained

• Comparisons to other attorneys

• Testimonials or client reviews

• Superlatives (PA technically bars attorneys from labeling themselves

as “experienced” or “competent”)

• Statements that imply the ability to get results

• “Real-time, electronic solicitation”

Your Blog & the First Amendment

What “Communication” Can Be Regulated?

Regulation of “Commercial Speech”

Central Hudson Gas & Electric Corp. v Public Service Commission (1980)

“Commercial speech” defined

“That which does no more than

propose a commercial

transaction.”

“Mixed” Content

• Dex Media v. City of Seattle

(2012)

• Is publication as a whole

commercial speech?

• Ad format

• Reference to specific product

• Economic motive

• Even if so, full protection

applies if commercial/non-

commercial speech is

“inextricably intertwined.”


Hunter v. Virginia State Bar


Blogging as Advertising


Blogging as Advertising


Blogging – Non-Advertising


Blogging – Non-Advertising

Defamation and Third-Party Comments

“The Law that Makes the Internet Go”

• 47 U.S.C. § 230

• Commonly known as “CDA 230”

• “No provider or user of an interactive computer

service shall be treated as the publisher or speaker

of any information provided by another information

content provider.”

• Blanket immunity from defamation liability for third

party comments

• Preempts state law

Defamation Basics

• A claim for damages to reputation based on false statements of fact

• Truth is an absolute defense

• Opinion is usually a defense

• Heightened standard for public figures to claim defamation

• Other important defenses:

• Substantial truth

• Fair report

• Statute of limitations & the “single publication” rule


Defamation Risks in Commentary


Anti-SLAPP


Unmasking Anonymous Commentors

Blogging About Clients

In re Peshek (2009)

• Attorney blogger disciplined for referring to criminal clients

• Used alias, but court determined the identities could be figured out

• Confidential info

• Non-confidential info that may be “embarrassing or detrimental” to

clients

Copyright Considerations

Fair Use & “Borrowing”

• Quotations for criticism and commentary

• The test for fair use

• “Transformative” uses

• Parody vs. Satire

• Special considerations for photos

• Government documents

• DMCA notices


Josh King

General Counsel &

Vice President, Business Development

Avvo, Inc.

Twitter: @joshuamking

Email: [email protected]

Questions?

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